<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 18, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
------------------------
COOKER RESTAURANT CORPORATION
(NAME OF ISSUER)
COOKER RESTAURANT CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, WITHOUT PAR VALUE
(TITLE OF CLASS OF SECURITIES)
216284208
(CUSIP NUMBER OF CLASS OF SECURITIES)
G. ARTHUR SEELBINDER
CHIEF EXECUTIVE OFFICER
COOKER RESTAURANT CORPORATION
5500 VILLAGE BOULEVARD
WEST PALM BEACH, FLORIDA 33407
(561) 615-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF THE PERSON(S) FILING STATEMENT)
Copies To:
PAUL S. BIRD, ESQ.
DEBEVOISE & PLIMPTON
875 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 909-6000
------------------------
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<PAGE> 2
This Amendment further amends and supplements the Issuer Tender Offer
Statement on Schedule 13E-4 filed by Cooker Restaurant Corporation, an Ohio
corporation (the "Company"), with the Securities and Exchange Commission (the
"SEC") on August 12, 1998, as amended by Amendment No. 1 thereto, filed with the
SEC by the Company on August 21, 1998, and Amendment No. 2 thereto, filed with
the SEC by the Company on September 11, 1998 (as so amended, the "Schedule
13E-4"), relating to a tender offer by the Company to purchase up to 4,000,000
shares (or such lesser number of shares as are validly tendered and not
withdrawn) of its Common Stock without par value (such shares, together with the
associated preferred stock purchase rights issued pursuant to the Rights
Agreement, dated as of February 1, 1990, between the Company and National City
Bank as Rights Agent, are hereinafter referred to as the "Shares"), at prices
not greater than $12.00 nor less than $10.50 net per Share in cash upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
August 12, 1998 (the "Offer to Purchase"), and in the related Letter of
Transmittal, which, as they may be amended from time to time, together
constitute the "Offer," copies of which are attached as Exhibits (a)(1) and
(a)(2), respectively, to the Schedule 13E-4. Capitalized terms used and not
defined herein shall have the meanings assigned to such terms in the Offer to
Purchase and the Schedule 13E-4.
ITEM 1. SECURITY AND ISSUER.
Upon the terms and subject to the conditions set forth in the Offer, the
Company is extending the Offer and the Offer, proration period and withdrawal
rights will now expire at 5:00 p.m., New York City time, on Friday, September
25, 1998, unless further extended by the Company.
(b) The information set forth in the sections of the Supplement to the
Offer to Purchase captioned "1. Introduction" and "7. Interests of Directors and
Executive Officers; Transactions and Arrangements Concerning Shares" is
incorporated herein by reference.
ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in the sections of the Supplement to the
Offer to Purchase captioned "3. Purpose of the Offer; Certain Effects of the
Offer" and "4. Source and Amount Funds" is incorporated herein by reference.
ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR
AFFILIATE.
(a)-(j) The information set forth in the sections of the Supplement to the
Offer to Purchase captioned "1. Introduction," "3. Purpose of the Offer; Certain
Effects of the Offer," "4. Source and Amount of Funds" and "7. Interests of
Directors and Executive Officers; Transactions and Arrangements Concerning
Shares" is incorporated herein by reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE ISSUER'S SECURITIES.
The information set forth in the sections of the Supplement to the Offer to
Purchase captioned "1. Introduction," "3. Purpose of the Offer; Certain Effects
of the Offer," "4. Source and Amount of Funds" and "7. Interests of Directors
and Executive Officers; Transactions and Arrangements Concerning Shares" is
incorporated herein by reference.
ITEM 7. FINANCIAL INFORMATION.
The information set forth in the section of the Supplement to the Offer to
Purchase captioned "6. Certain Information Concerning the Company" is
incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION.
(e) The information set forth in the Supplement to the Offer to Purchase, a
copy of which is attached hereto as Exhibit (a)(16), is incorporated herein by
reference.
2
<PAGE> 3
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<C> <S>
(a)(16) Supplement to the Offer to Purchase, dated September 18,
1998.
(17) Form of Press Release, dated September 17, 1998.
(18) Form of Letter to Shareholders of the Company from G. Arthur
Seelbinder, Chairman and Chief Executive Officer.
(19) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(20) Form of Letter to Participants in the Company's 401(k) Plan.
(21) Form of Letter to Participants in the Company's Employee
Stock Purchase Plan.
(b)(3) Commitment letter, dated September 15, 1998, from The CIT
Group/Equipment Financing, Inc. to the Company.
(4) Commitment letter, dated September 14, 1998, from
NationsBank of Tennessee, N.A. to the Company.
(5) Commitment letter, dated September 16, 1998, from First
Union National Bank to the Company.
(c)(10) Letter, dated September 17, 1998, from G. Arthur Seelbinder
to the Company.
</TABLE>
3
<PAGE> 4
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Amendment is true, complete and correct.
COOKER RESTAURANT CORPORATION
By: /s/ G. ARTHUR SEELBINDER
------------------------------------
Name: G. Arthur Seelbinder
Title: Chairman and Chief Executive
Officer
Dated: September 18, 1998
4
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- -------- -----------
<C> <S> <C>
(a)(16) Supplement to the Offer to Purchase, dated September 18,
1998.
(17) Form of Press Release, dated September 17, 1998.
(18) Form of Letter to Shareholders of the Company from G. Arthur
Seelbinder, Chairman and Chief Executive Officer.
(19) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(20) Form of Letter to Participants in the Company's 401(k) Plan.
(21) Form of Letter to Participants in the Company's Employee
Stock Purchase Plan.
(b)(3) Commitment letter, dated September 15, 1998, from The CIT
Group/Equipment Financing, Inc. to the Company.
(4) Commitment letter, dated September 14, 1998, from
NationsBank of Tennessee, N.A. to the Company.
(5) Commitment letter, dated September 16, 1998, from First
Union National Bank to the Company.
(c)(10) Letter, dated September 17, 1998, from G. Arthur Seelbinder
to the Company.
</TABLE>
5
<PAGE> 1
EXHIBIT (a)(16)
[COOKER LOGO]
COOKER RESTAURANT CORPORATION
SUPPLEMENT TO THE OFFER TO PURCHASE FOR CASH UP TO
4,000,000 SHARES OF ITS COMMON STOCK WITHOUT PAR VALUE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
AT A PURCHASE PRICE NOT GREATER THAN $12.00
NOR LESS THAN $10.50 PER SHARE
THE OFFER HAS BEEN FURTHER EXTENDED. THE OFFER, PRORATION PERIOD AND WITHDRAWAL
RIGHTS NOW EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, SEPTEMBER 25,
1998, UNLESS THE OFFER IS FURTHER EXTENDED.
Cooker Restaurant Corporation, an Ohio corporation (the "Company"), has
invited its shareholders to tender up to 4,000,000 shares of its Common Stock,
without par value (such shares, together with the associated preferred share
purchase rights issued pursuant to the Rights Agreement, dated as of February 1,
1990, between the Company and National City Bank as Rights Agent, are
hereinafter referred to as the "Shares"), to the Company at prices not greater
than $12.00 nor less than $10.50 per Share in cash, as specified by tendering
shareholders, upon the terms and subject to the conditions set forth in the
Company's Offer to Purchase, dated August 12, 1998 (the "Offer to Purchase"), as
amended and supplemented by this Supplement to the Offer to Purchase, and in the
related Letter of Transmittal (which together constitute the "Offer").
The Company has amended the Offer to (i) extend the Expiration Date (as
defined below) to Friday, September 25, 1998, (ii) disclose that the Company has
been advised that its Chairman and Chief Executive Officer intends to tender a
greater number of Shares in the Offer than the number set forth in the Offer to
Purchase, and (iii) to describe alternate financing arrangements that the
Company anticipates will be used to finance the Offer and pay related fees and
expenses and the effects of those alternate financing arrangements on the
Company's capital structure. The Company believes that such alternate financing
arrangements are more favorable to the Company than the Sale-Leaseback
Transactions described in the Offer to Purchase and does not currently
anticipate consummating such Sale-Leaseback Transactions in order to finance the
Offer.
THE OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS CONDITIONED UPON THE COMPANY HAVING OBTAINED SUFFICIENT
FINANCING TO FUND THE PURCHASE OF SHARES TENDERED IN THE OFFER, AND PAY ALL
RELATED FEES AND EXPENSES. THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER
CONDITIONS. SEE SECTION 6 OF THE OFFER TO PURCHASE AND SECTION 3 OF THIS
SUPPLEMENT.
THE BOARD OF DIRECTORS OF THE COMPANY (THROUGH A SPECIAL COMMITTEE, AS SET
FORTH IN SECTION 10 OF THE OFFER TO PURCHASE) HAS APPROVED THE OFFER. HOWEVER,
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
SHAREHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES.
EACH SHAREHOLDER MUST MAKE THE DECISION WHETHER TO TENDER SHARES AND, IF SO, HOW
MANY SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH SHARES SHOULD BE
TENDERED. FOUR OF THE COMPANY'S DIRECTORS HAVE INFORMED THE COMPANY THAT THEY
INTEND TO TENDER SHARES PURSUANT TO THE OFFER. SEE SECTION 10 OF THE OFFER TO
PURCHASE AND SECTION 7 OF THIS SUPPLEMENT. EXCEPT AS SET FORTH IN SECTION 10 OF
THE OFFER TO PURCHASE AND SECTION 7 OF THIS SUPPLEMENT, THE COMPANY HAS BEEN
ADVISED THAT NONE OF ITS DIRECTORS OR EXECUTIVE OFFICERS INTEND TO TENDER ANY
SHARES PURSUANT TO THE OFFER. SEE SECTION 10 OF THE OFFER TO PURCHASE AND
SECTION 7 OF THIS SUPPLEMENT.
------------------------
THE DEALER MANAGER FOR THE OFFER IS:
DONALDSON, LUFKIN & JENRETTE
The date of this Supplement is September 18, 1998.
<PAGE> 2
IMPORTANT
Any shareholder wishing to tender all or any part of his or her Shares
should either (a) complete and sign a Letter of Transmittal (or a facsimile
thereof) circulated with the Offer to Purchase in accordance with the
instructions in the Letter of Transmittal and either mail or deliver it with any
required signature guarantee or an Agent's Message (as defined below) and any
other required documents to ChaseMellon Shareholder Services, L.L.C. (the
"Depositary"), and either mail or deliver the stock certificates for such
tendered Shares to the Depositary (with all such other documents) or tender such
Shares pursuant to the procedure for book-entry delivery set forth in Section 3
of the Offer to Purchase, or (b) request a broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for such shareholder.
Shareholders having Shares registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact that broker,
dealer, commercial bank, trust company or other nominee if they desire to tender
their Shares. Any shareholder who desires to tender Shares and whose
certificates for such Shares cannot be delivered to the Depositary or who cannot
comply with the procedure for book-entry transfer or whose other required
documents cannot be delivered to the Depositary, in any case, by the expiration
of the Offer must tender such Shares pursuant to the guaranteed delivery
procedure set forth in Section 3 of the Offer to Purchase.
Tendering shareholders may use the original Letter of Transmittal and the
original Notice of Guaranteed Delivery previously circulated with the Offer to
Purchase. Shareholders who previously have validly tendered and not withdrawn
Shares pursuant to the Offer are not required to take any further action in
order to tender Shares pursuant to the Offer except as may be required by the
guaranteed delivery procedure if such procedure was utilized. See Section 3 of
the Offer to Purchase.
Additional copies of this Supplement, the Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent and will be furnished at the Company's expense. Questions and
requests for assistance may be directed to the Information Agent or the Dealer
Manager at their addresses and telephone numbers set forth on the back cover of
this Supplement. Shareholders may also contact their local broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
2
<PAGE> 3
To the Holders of Common Stock of Cooker Restaurant Corporation:
INTRODUCTION
The following information amends and supplements the Company's Offer to
Purchase. Except as otherwise set forth in this Supplement, the terms and
conditions previously set forth in the Offer to Purchase remain applicable in
all respects to the Offer, and this Supplement should be read in conjunction
with the Offer to Purchase. Unless the context requires otherwise, terms not
defined herein have the meaning ascribed to them in the Offer to Purchase.
1. INTRODUCTION.
The third and fourth full paragraphs of page 6 of the Offer to Purchase are
amended and restated in their entirety as follows:
The Company's obligation to purchase Shares pursuant to the Offer is
conditioned upon, among other things, sufficient financing being obtained
by the Company to fund the purchase of Shares tendered in the Offer and pay
all related fees and expenses pursuant to the terms of the financing
commitments described in Section 2 ("Purpose of the Offer; Certain Effects
of the Offer -- The Financing Transactions") or such other terms as the
Company shall agree and as are not materially more onerous than as set
forth in such commitments (the "Financing Condition").
As described in Section 2, on September 15, 1998, the Company obtained
from a third party a commitment for financing secured by certain restaurant
equipment owned by the Company or one of its affiliates for $18,000,000 of
proceeds (the "Equipment Loan"), and on September 14, 1998, the Company
obtained from another third party a commitment to provide a $30,000,000
bridge loan and a $10,000,000 revolving line of credit as part of a
$62,500,000 credit facility secured by a first mortgage on certain
restaurant properties owned by the Company or one of its affiliates (the
"Credit Facility" and, together with the Equipment Loan, the "Financing
Transactions"). The commitment of such third party to provide its portion
of the Credit Facility is conditioned upon a bridge loan participation in
the Credit Facility (the "Bridge Loan Participation") by the lender under
the Company's existing revolving credit facility (the "Existing Term Loan")
for $22,500,000 of the Credit Facility, and on September 16, 1998, the
Company received a written commitment and waiver from such lender (i)
committing to provide the Bridge Loan Participation and (ii) consenting to
the Equipment Loan. The consent of such lender with respect to the
Equipment Loan is conditioned upon the closing of the Bridge Loan
Participation. The Company currently expects that the Credit Facility
subsequently will be converted to permanent financing, pursuant to the
terms and conditions of the commitment with respect to the Credit Facility.
If the Financing Transactions have not been consummated, and funds have not
otherwise been obtained on terms not materially more onerous than those
contemplated by the written commitments described in Section 2 on or prior
to the Expiration Date, in an amount sufficient to finance the Company's
purchase of Shares tendered pursuant to the Offer and to pay related fees
and expenses, the Company intends to extend the Expiration Date from time
to time for a period not to extend beyond October 30, 1998 until such
Financing Transactions have been consummated, or such funds have otherwise
been obtained, and the other conditions to the Offer have been satisfied or
waived.
The last paragraph beginning on page 6 and continuing on page 7 of the
Offer to Purchase is amended and restated in its entirety as follows:
The Special Committee of the Company's Board of Directors (described
in Section 10) believes that the Offer is in the best interests of the
Company. The Offer affords to those shareholders who desire liquidity an
opportunity to sell all or a portion of their Shares without the usual
transaction costs associated with open market sales. The Company believes
that the Offer and the Financing Transactions will be accretive to earnings
per share (on both a basic and diluted basis) in the Company's current
fiscal year ending January 3, 1999 and in the fiscal year ending January 2,
2000, but there can be no assurance to that effect. In connection with the
completion of the Financing Transactions and the Offer, the
3
<PAGE> 4
Company intends to repay the amount outstanding under the Existing Term
Loan with the proceeds of the Credit Facility.
2. EXPIRATION DATE.
The first full paragraph on page 8 of the Offer to Purchase is hereby
amended and restated in its entirety as follows:
Upon the terms and subject to the conditions of the Offer, the Company
will purchase 4,000,000 Shares or such lesser number of Shares as are
validly tendered (and not withdrawn in accordance with Section 4) prior to
the Expiration Date (as defined below) at prices not greater than $12.00
nor less than $10.50 per Share. The term "Expiration Date" means 5:00 p.m.,
New York City time, on Friday, September 25, 1998, unless and until the
Company, in its sole discretion, shall have extended the period of time
during which the Offer, as so extended by the Company, shall expire. See
Section 14 for a description of the Company's right to extend, delay,
terminate or amend the Offer. The Company reserves the right, in its sole
discretion, to purchase more than 4,000,000 Shares pursuant to the Offer.
In accordance with applicable regulations of the Securities and Exchange
Commission (the "Commission"), the Company may purchase pursuant to the
Offer an additional amount of Shares not to exceed 2% of the outstanding
Shares without amending or extending the Offer. See Section 14. In the
event of an over-subscription of the Offer as described below, Shares
tendered at or below the Purchase Price prior to the Expiration Date will
be eligible for proration, except for Odd Lots as explained below. The
proration period also expires on the Expiration Date.
3. PURPOSE OF THE OFFER; CERTAIN EFFECTS OF THE OFFER.
The second full paragraph under the caption "The Offer" on page 10 of the
Offer to Purchase is amended and restated in its entirety as follows:
The Special Committee of the Company's Board of Directors (described
in Section 10) believes that the Offer is in the best interests of the
Company. The Offer affords to those shareholders who desire liquidity an
opportunity to sell all or a portion of their Shares without the usual
transaction costs associated with open market sales. The Company believes
that the Offer and the Financing Transactions will be accretive to earning
per share (on both a basic and a diluted basis) in the Company's current
fiscal year ending January 3, 1999 and in the fiscal year ending January 2,
2000, but there can be no assurance to that effect.
The caption "The Sale-Leaseback Transactions and Related Transactions" on
page 10 of the Offer to Purchase, and the discussion under such caption, is
deleted in its entirety and replaced by the following caption and discussion:
THE FINANCING TRANSACTIONS
The amount required to fund the purchase of Shares tendered in the
Offer (assuming a purchase price of $12.00 per Share) and pay related fees
and expenses of such transactions is estimated to be approximately $52
million.
The Company intends to finance the Offer and pay related fees and
expenses by entering into (i) an Equipment Loan with respect to certain of
the new and used restaurant equipment (the "Equipment") owned by the
Company and its subsidiary, CGR Management Corporation, a Florida
corporation; and (ii) a Credit Facility secured by a first mortgage on
certain real estate properties owned by the Company or its affiliate,
Southern Cooker Limited Partnership, an Ohio limited partnership, where the
Company's restaurants are located (the "Properties"). On September 16,
1998, the Company obtained from First Union National Bank ("First Union") a
written commitment and waiver (the "First Union Letter"), whereby First
Union (i) committed to participate as a lender under the Credit Facility
and (ii) consented to the Equipment Loan. First Union's consent to the
Equipment Loan is conditioned upon the closing of First Union's
participation as a lender under the Credit Facility. The Offer is
conditioned upon the closing
4
<PAGE> 5
of the Financing Transactions in an amount sufficient to (i) finance the
Offer and (ii) pay related fees and expenses. If the Financing Transactions
have not been consummated, and funds have not otherwise been obtained on
terms not materially more onerous to the Company than those contemplated by
the Commitment Letters (defined below) on or prior to the Expiration Date
in an amount sufficient to finance the Company's purchase of Shares
tendered pursuant to the Offer and to pay related fees and expenses, the
Company intends to extend the Expiration Date from time to time for a
period not to extend beyond October 30, 1998 until such Financing
Transactions have been consummated, or such funds have otherwise been
obtained, and the other conditions to the Offer have been satisfied or
waived.
The Equipment Loan. On September 15, 1998, the Company obtained a written
commitment letter (the "CIT Commitment Letter") from The CIT Group/Equipment
Financing, Inc. ("CIT") with respect to the Equipment Loan, providing for a loan
in the principal amount of $18 million secured by certain of the Equipment, on
the terms and conditions described in the CIT Commitment Letter.
The CIT Commitment Letter provides that the principal and interest amounts
due with respect to the Equipment Loan shall be repaid over a five-year term and
calculated based upon a seven-year amortization schedule. The CIT Commitment
Letter provides that the interest on the Equipment Loan, prior to maturity, will
be a fixed per annum rate equal to the yield to maturity on actively traded U.S.
Treasury Securities having a remaining term to maturity closest to the average
life of the Equipment Loan plus 1.85%. The Company currently expects that the
interest rate on the Equipment Loan will be fixed at approximately 6.76%.
The closing of the Equipment Loan is subject to certain conditions,
including (i) the determination by CIT in its sole discretion that the Equipment
and its location is acceptable; (ii) the receipt by CIT of (a) any landlord or
mortgagee waivers as may be required by its counsel, (b) certain financial
information regarding the Company, and (c) a satisfactory bank credit reference
from the lender under the Company's Existing Term Loan; (iii) the non-occurrence
of any material adverse change in the financial condition or business prospects
of the Company or any guarantor or any other party to whom CIT may have recourse
with respect to the Equipment Loan; and (iv) the execution and delivery to CIT
of definitive documentation, including a note and security agreement, with
respect to the Equipment Loan. It is currently anticipated that the definitive
documentation for the Equipment Loan will be customary for transactions of that
nature.
The Credit Facility. On September 14, 1998, the Company obtained a written
commitment letter (the "NationsBank Commitment Letter" and, together with the
CIT Commitment Letter and the First Union Letter, the "Commitment Letters") from
NationsBank of Tennessee, N.A. ("NationsBank"), providing for a $30,000,000
bridge loan and a $10,000,000 revolving line of credit as part of a $62,500,000
Credit Facility secured by a first mortgage on certain Properties, on the terms
and conditions described in the NationsBank Commitment Letter. The NationsBank
Commitment Letter is conditioned upon the Bridge Loan Participation from First
Union National Bank ("First Union"), the lender under the Existing Term Loan,
and on September 16, 1998 the Company received the First Union Letter, which
provides for a $22,500,000 Bridge Loan Participation in the Credit Facility on
the terms and conditions described in the NationsBank Commitment Letter.
The NationsBank Commitment Letter provides that the Credit Facility will
have a 66-month maturity. The NationsBank Commitment Letter provides that the
rate of interest charged on the Credit Facility will be the 30-day LIBOR rate
(as determined by NationsBank and adjusted for reserves), plus an applicable
margin of no less than 1% and no greater than 2.25%, based upon the Company's
ratio of outstanding senior debt to EBITDA on a rolling four-quarter basis.
Under the terms of the NationsBank Commitment Letter, during the 180-day period
following the closing of the Credit Facility, the Company has the opportunity to
replace the Credit Facility with permanent financing on some or all of the
Properties from another financing source and/or to convert the Credit Facility,
or some portion thereof, to permanent financing, consisting of a term loan
and/or a revolving line of credit (with the amount of such revolving line of
credit not to exceed $10,000,000), with NationsBank and the other banks
participating in the Credit Facility (the "Permanent Financing"). Under the
terms of the NationsBank Commitment Letter, (i) the Permanent Financing may
consist of a term loan and/or a revolving credit facility, each with a 60-month
maturity, (ii) any portion of the Permanent Financing that consists of a term
loan held by First Union will have an 84-month mortgage
5
<PAGE> 6
amortization with a 60-month balloon, and (iii) any portion of the Permanent
Financing that consists of a term loan held by NationsBank will have a 180-month
level principal amortization with a 60-month balloon. The Company currently
expects to convert the full Credit Facility to such Permanent Financing.
The closing of the Credit Facility is subject to certain conditions,
including (i) the satisfactory completion by NationsBank and First Union of
their due diligence investigation with respect to, among other things, title,
appraisal, insurance, environmental and other matters relating to the
Properties, and the Company's Year 2000 preparedness, (ii) the absence of any
material adverse change in the condition of the Company, and (iii) the execution
and delivery to NationsBank and First Union of definitive documentation with
respect to the Credit Facility. It is anticipated that the definitive
documentation for the Credit Facility will be customary for transactions of that
nature.
The documentation for the Credit Facility will contain financial and other
covenants customary for such transactions, including maintenance of certain
fixed charge coverage, senior funded debt to EBITDA and rent coverage ratios,
certain debt limitations and the requirement that the Company enter into an
interest rate hedge program with respect to a portion of the Credit Facility. It
is expected that the documentation for the Equipment Financing will also contain
financial and other covenants customary for such transactions.
Copies of the Commitment Letters have been filed as exhibits to Amendment
No. 3 to the Company's Issuer Tender Offer Statement on Schedule 13E-4.
Reference is made to such exhibits for a more complete description of the
Financing Transactions.
THE BOARD OF DIRECTORS (THROUGH A SPECIAL COMMITTEE, AS SET FORTH IN
SECTION 10) OF THE COMPANY HAS APPROVED THE OFFER. HOWEVER, NEITHER THE COMPANY
NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO SHAREHOLDERS AS TO
WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES AND, IF SO, HOW MANY
SHARES TO TENDER AND THE PRICE OR PRICES AT WHICH SHARES SHOULD BE TENDERED.
FOUR OF THE COMPANY'S DIRECTORS HAVE INFORMED THE COMPANY THAT THEY INTEND TO
TENDER SHARES PURSUANT TO THE OFFER. SEE SECTION 10. EXCEPT AS SET FORTH IN
SECTION 10, THE COMPANY HAS BEEN ADVISED THAT NONE OF ITS DIRECTORS OR EXECUTIVE
OFFICERS INTEND TO TENDER SHARES PURSUANT TO THE OFFER. SEE SECTION 10.
4. SOURCE AND AMOUNT OF FUNDS.
The discussion set forth in Section 8 of the Offer to Purchase is amended
and restated in its entirety as follows:
Assuming that the Company purchases 4,000,000 Shares pursuant to the
Offer at a purchase price of $12.00 per Share, the Company expects that the
maximum amount required to finance the Offer and the payment of related
fees and expenses will be approximately $52 million. The Company expects to
obtain financing for such transactions pursuant to the Financing
Transactions described in Section 2 ("Purpose of the Offer; Certain Effects
of the Offer -- The Financing Transactions"). The Offer is conditioned
upon, among other things, the Company having obtained sufficient financing
to fund the purchase of Shares tendered in the Offer and pay all related
fees and expenses pursuant to the terms of the financing commitments
described in Section 2.
5. LETTERS OF TRANSMITTAL.
The Company has not printed or distributed new Letters of Transmittal or
other ancillary documents in connection with this Supplement to the Offer to
Purchase. Stockholders should use the originally distributed Letters of
Transmittal and ancillary documents, as appropriate. If needed, additional
copies of such documents may be obtained from the Information Agent.
Shareholders may also contact their broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Offer.
6
<PAGE> 7
6. CERTAIN INFORMATION CONCERNING THE COMPANY.
The introductory paragraph to the Summary Unaudited Consolidated Pro Forma
Financial Information on page 20 of the Offer to Purchase is hereby amended and
restated in its entirety as follows:
The following summary unaudited consolidated pro forma financial
information gives effect to the purchase of Shares pursuant to the Offer,
the Financing Transactions and the payment of related fees and expenses,
based on the assumptions described in the Notes to Summary Unaudited
Consolidated Pro Forma Financial Information below, as if such transactions
had occurred on the first day of each of the periods presented, with
respect to operating statement data, and on June 28, 1998 and December 27,
1997, with respect to balance sheet data. The summary unaudited
consolidated pro forma financial information should be read in conjunction
with the summary historical consolidated financial information incorporated
herein by reference and does not purport to be indicative of the results
that would actually have been obtained, or results that may be obtained in
the future, or the financial condition that would have resulted, if the
purchase of the Shares pursuant to the Offer, the Financing Transactions
and the payment of related fees and expenses had been completed at the
dates indicated.
7
<PAGE> 8
The Summary Unaudited Consolidated Pro Forma Financial Information and the
Notes to Summary Unaudited Consolidated Pro Forma Financial Information set
forth on pages 21 through 23 of the Offer to Purchase are amended and restated
in their entirety as follows:
SUMMARY UNAUDITED CONSOLIDATED PRO FORMA FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR ENDED
JUNE 28, 1998 DECEMBER 28, 1997
------------------------------------- ------------------------------------
PRO FORMA PRO FORMA
STATEMENT OF INCOME DATA: HISTORICAL ADJUSTMENTS PRO FORMA HISTORICAL ADJUSTMENTS PRO FORMA
------------------------- ---------- ----------- --------- ---------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
Sales................................. $ 80,389 $ $ 80,389 $ 135,458 $ $ 135,458
---------- --------- --------- ---------- --------- ---------
Cost of Sales:
Food and beverage................... 22,917 22,917 38,762 38,762
Labor............................... 27,784 27,784 46,711 46,711
Restaurant operating expenses....... 14,332 14,332 23,662 23,662
Restaurant depreciation............. 3,020 3,020 4,966 4,966
General and administrative.......... 4,942 4,942 9,854 9,854
Interest expense, net............... 1,326 2,043c,d 3,369 1,689 5,049c,d 6,738
---------- --------- --------- ---------- --------- ---------
74,321 2,043 76,364 125,644 5,049 130,693
---------- --------- --------- ---------- --------- ---------
Income before income taxes and
cumulative effect of a change in
accounting principle................ 6,068 (2,043) 4,025 9,814 (5,049) 4,765
Provision for income taxes before
cumulative effect of a change in
accounting principle................ 1,890 (811)f 1,079 3,362 (1,952)f 1,410
---------- --------- --------- ---------- --------- ---------
Income before cumulative effect
of a change in accounting
principle...................... 4,178 (1,232) 2,946 6,452 (3,097) 3,355
Cumulative effect of a change in
accounting for preoperational costs
(net of tax)........................ -- 496 31 527
---------- --------- --------- ---------- --------- ---------
Net income.......................... $ 4,178 $ (1,232) $ 2,946 $ 5,956 $ (3,128) $ 2,828
========== ========= ========= ========== ========= =========
Basic earnings per share:
Income before cumulative effect of
change in accounting principle... $ 0.41 $ 0.07 $ 0.48 $ 0.64 $ (0.08) $ 0.56
Cumulative effective of change in
accounting for preoperational
costs............................ -- -- -- (0.05) (0.04) (0.09)
---------- --------- --------- ---------- --------- ---------
Net Income.......................... $ 0.41 $ 0.07 $ 0.48 $ 0.59 $ (0.12) $ 0.47
========== ========= ========= ========== ========= =========
Diluted earnings per share:
Income before cumulative effect of
change in accounting principle... $ 0.41 $ 0.06 $ 0.47 $ 0.63 $ (0.10) $ 0.53
Cumulative effect of change in
accounting for preoperational
costs............................ $ -- -- -- (0.05) (0.03) (0.08)
---------- --------- --------- ---------- --------- ---------
Net Income.......................... $ 0.41 $ 0.06 $ 0.47 $ 0.58 $ (0.13) $ 0.45
========== ========= ========= ========== ========= =========
Dividends per share................... $ 0.07 $ -- $ 0.07 $ 0.07 $ -- $ 0.07
Ratio of earnings to fixed charges.... 4.67 2.17 4.93 1.63
Dividend dollars paid................. 702 422 702 422
Common Shares that dividends were paid
on.................................. 10,023,000 4,000,000 6,023,000 10,035,000 4,000,000 6,035,000
Common Shares Issued and
Outstanding......................... 10,159,000 4,000,000 6,159,000 10,021,000 4,000,000 6,021,000
Weighted Average Shares -- Basic...... 10,078,000 4,000,000 6,078,000 10,024,000 4,000,000 6,024,000
Weighted Average Shares -- Diluted.... 10,253,000 4,000,000 6,253,000 10,287,000 4,000,000 6,287,000
</TABLE>
8
<PAGE> 9
SUMMARY UNAUDITED CONSOLIDATED PRO FORMA FINANCIAL INFORMATION (CONT.)
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
SIX MONTHS ENDED FISCAL YEAR ENDED
JUNE 28, 1998 DECEMBER 28, 1997
-------------------------------------- --------------------------------------
PRO FORMA PRO FORMA
HISTORICAL ADJUSTMENTS PRO FORMA HISTORICAL ADJUSTMENTS PRO FORMA
---------- ----------- ---------- ---------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
BALANCE SHEET AND OTHER
DATA:
ASSETS
Current Assets:
Cash and cash equivalents.... $ 4,504 $ (1,790)e $ 2,714 $ 4,685 $ (1,790)e $ 2,895
Inventory.................... 1,496 1,496 1,509 1,509
Land held for sale........... 55 55 55 55
Prepaid and other current
assets.................... 791 791 1,057 1,057
---------- ---------- ---------- ---------- ---------- ----------
Total current
assets............. 6,846 (1,790) 5,056 7,306 (1,790) 5,516
Property and equipment......... 139,812 139,812 134,190 134,190
Other assets................... 1,558 1,100d 2,658 1,425 1,100d 2,525
---------- ---------- ---------- ---------- ---------- ----------
$ 148,216 $ (690) $ 147,526 $ 142,921 $ (690) $ 142,231
========== ========== ========== ========== ========== ==========
LIABILITIES AND SHAREHOLDERS'
EQUITY
Current liabilities:
Current maturities long-term
debt...................... $ 3,300 $ (580) $ 2,720 $ -- $ 7,891 $ 7,891
Notes payable................ 425 425 -- 0
Accounts payable............. 4,207 4,207 4,668 4,668
Accrued liabilities.......... 6,810 6,810 6,857 6,857
Income taxes payable......... 848 848 61 61
---------- ---------- ---------- ---------- ---------- ----------
Total current
liabilities........ 15,590 (580) 15,010 11,586 7,891 19,477
Long-term debt................. 39,115 48,580c 87,695 42,415 40,109c 82,524
Deferred income taxes.......... 1,813 1,813 1,813 1,813
Other liabilities.............. 629 629 635 635
---------- ---------- ---------- ---------- ---------- ----------
Total liabilities.... 57,147 48,000 105,147 56,449 48,000 104,449
---------- ---------- ---------- ---------- ---------- ----------
Shareholders' equity:
Common Shares, without par
value; authorized,
30,000,000 shares......... 62,555 62,555 63,039 63,039
Retained earnings............ 33,047 33,047 29,570 29,570
Treasury stock at cost....... (4,533) (48,690)a,b (53,223) (6,137) (48,690)a,b (54,827)
---------- ---------- ---------- ---------- ---------- ----------
Total shareholders'
equity............. 91,069 (48,690) 42,379 86,472 (48,690) 37,782
---------- ---------- ---------- ---------- ---------- ----------
$ 148,216 $ (690) $ 147,526 $ 142,921 $ (690) $ 142,231
========== ========== ========== ========== ========== ==========
Book value per Common Share.... $ 8.96 $ 6.88 $ 8.63 $ 6.27
Common Shares Issued and
Outstanding.................. 10,159,000 (4,000,000)b 6,159,000 10,022,000 (4,000,000)b 6,022,000
Common Shares Issued........... 10,548,000 10,548,000 10,548,000 10,548,000
Treasury Shares at cost........ 389,000 4,000,000b 4,389,000 526,000 4,000,000b 4,526,000
</TABLE>
9
<PAGE> 10
NOTES TO SUMMARY UNAUDITED CONSOLIDATED
PRO FORMA FINANCIAL INFORMATION
(1) The following assumptions were made in presenting the summary unaudited
consolidated pro forma financial information:
(a) The information assumes that 4,000,000 Shares are repurchased and
recorded as Treasury Stock at $12 per share.
(b) Expenses directly related to the Offer are assumed to be $690,000
and have been charged against Treasury Stock.
(c) The purchase price is assumed to be financed with a mortgage
and/or bank financing as follows:
Bank A: $18,000,000 for 5 years at 6.76% with a 7-year
amortization. Secured by equipment.
Bank B: $40,000,000 for 5 years at 7.90% with a 15-year
amortization, consisting of a Term Loan of $30,000,000 and a Line
of Credit $10,000,000.
Bank C: $22,500,000 for 5 years at 7.90% with a 7-year
amortization.
(d) Expenses directly related to the financing are assumed to be
$1,100,000, and capitalized and amortized over 5 years.
(e) Cash is decreased by $1,790,000 in connection with the payment of
fees and expenses related to the Financing Transactions and the
Offer.
(f) The impact of these pro forma adjustments results in a net
reduction in the Company's effective tax rate. The resulting rates
are 26.8% and 29.6% for the periods ended June 28, 1998 and
December 28, 1997, respectively.
(2) Book value per share is calculated by dividing common shareholders' equity
by the number of common and pro forma shares outstanding at the end of the
period.
(3) For purposes of computing the ratio of earnings to fixed charges, "earnings"
has been calculated by adding to the caption "income before income taxes and
cumulative effect of a change in accounting principle," fixed charges,
excluding capitalized interest. "Fixed Charges" consists of interest expense
whether capitalized or expensed, amortization of debt costs, and the portion
of rents representing the interest factor, which the Company generally
calculates as 8.0%.
7. INTERESTS OF DIRECTORS AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS
CONCERNING SHARES.
The fourth full paragraph on page 24 of the Offer to Purchase is hereby
amended and restated in its entirety as follows:
The Company has been advised that G. Arthur Seelbinder, Chairman and
Chief Executive Officer, intends to tender up to 737,562 Shares (or
approximately 99% of the Shares currently owned by Mr. Seelbinder,
excluding options) in the Offer. Mr. Seelbinder has informed the Company
that he will use certain of the net after tax proceeds he may receive as a
result of the tender of such Shares in the Offer to repay a portion of the
Loan (described below).
8. MISCELLANEOUS.
The Company is not aware of any jurisdiction where the making of the Offer
is not in compliance with applicable law. If the Company becomes aware of any
jurisdiction where the making of the Offer is not in compliance with any valid
applicable law, the Company will make a good faith effort to comply with such
law. If, after such good faith effort, the Company cannot comply with such law,
the Offer will not be made to (nor will tenders be accepted from or on behalf
of) the holders of Shares residing in such jurisdiction. In any jurisdiction the
securities or blue sky laws of which require the Offer to be made by a licensed
broker or dealer,
10
<PAGE> 11
the Offer is being made on the Company's behalf by the Dealer Manager or one or
more registered brokers or dealers licenses under the laws of such jurisdiction.
Pursuant to Rule 13e-4 of the General Rules and Regulations under the
Exchange Act, the Company has filed with the Commission amendments to the Issuer
Tender Offer Statement on Schedule 13E-4 furnishing additional information with
respect to the Offer and may file additional amendments thereto. Such Schedule
13E-4 and any and all amendments thereto, including exhibits, may be examined,
and copies may be obtained, at the same places and in the same manner as is set
forth in Section 9 of the Offer to Purchase with respect to information
concerning the Company.
Except as modified by this Supplement and any amendments to the Schedule
13E-4, the terms and conditions set forth in the Offer to Purchase and the
related Letter of Transmittal remain applicable in all respects to the Offer,
and this Supplement should be read in conjunction with the Offer to Purchase and
the related Letter of Transmittal.
COOKER RESTAURANT CORPORATION
September 18, 1998
11
<PAGE> 12
Facsimile copies of the Letter of Transmittal will be accepted from
Eligible Institutions. The Letter of Transmittal and certificates for Shares and
any other required documents should be sent or delivered by each shareholder or
his or her broker, dealer, commercial bank, trust company or other nominee to
the Depositary at one of its addresses set forth below.
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY OVERNIGHT DELIVERY: BY HAND:
P.O. Box 3301 85 Challenger Road 120 Broadway, 13th Floor
South Hackensack, NJ 07606 Mail Drop -- Reorg New York, NY 10271
Ridgefield Park, NJ 07660
Attn: Reorganization Department Attn: Reorganization Department Attn: Reorganization Department
BY FACSIMILE TRANSMISSIONS:
(for Eligible Institutions
only)
(201) 296-4293
CONFIRM BY TELEPHONE:
(201) 296-4860
</TABLE>
Additional copies of the Offer to Purchase, this Supplement, the Letter of
Transmittal or other tender offer materials may be obtained from the Information
Agent and will be furnished at the Company's expense. Questions and requests for
assistance may be directed to the Information Agent or the Dealer Manager as set
forth below. Shareholders may also contact their local broker, dealer,
commercial bank, trust company or other nominee for assistance concerning the
Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
450 West 33rd Street
14th Floor
New York, New York 10001
BANKS AND BROKERS CALL COLLECT: (212) 273-8080
ALL OTHERS CALL TOLL-FREE: (800) 549-9249
THE DEALER MANAGER FOR THE OFFER IS:
DONALDSON, LUFKIN & JENRETTE
277 Park Avenue
New York, New York 10172
CALL COLLECT: (212) 892-3644
September 18, 1998
<PAGE> 1
TO BUSINESS EDITOR: EXHIBIT (a)(17)
COOKER RESTAURANT CORPORATION FURTHER EXTENDS AND
ANNOUNCES CHANGES TO FINANCING FOR TENDER OFFER FOR UP TO
4,000,000 SHARES OF ITS COMMON STOCK
WEST PALM BEACH, Fla., Sept. 17 /PR Newswire/ -- Cooker Restaurant
Corporation (NYSE: CGR) announced today that it will further extend its Dutch
Auction issuer tender offer to purchase for cash up to 4,000,000 shares of its
issued and outstanding common stock without par value. The tender offer will now
expire, unless further extended, at 5:00 p.m., New York City time, on Friday,
September 25, 1998. The Company has been informed by the depositary that
approximately 7,100,000 shares have been tendered through the close of business
today.
The Company stated that it was further extending the tender offer in order
to provide more time to complete the financing arrangements necessary to
consummate the tender offer and allow shareholders to consider the revised
information relating to the financing for the tender offer in making a decision
whether or not to tender shares in the offer. The Company announced that it had
received commitments for asset-backed and mortgage financing from third party
sources, which the Company believes are more favorable to the Company than the
Sale-Leaseback Transactions that were described in the Company's Offer to
Purchase, dated August 12, 1998. Revised information relating to the financing
for the tender offer is contained in the Supplement to the Offer to Purchase,
dated September 18, 1998, which is being distributed to the Company's
shareholders.
The Supplement to the Offer to Purchase will be mailed to shareholders of
record of the Company's common stock and will also be made available for
distribution to beneficial owners of such common stock.
The dealer manager for the tender offer is Donaldson, Lufkin & Jenrette
Securities Corporation (call collect: 212-892-3644) and the depositary and
information agent is ChaseMellon Shareholder Services, L.L.C. (call toll free:
800-549-9249).
To obtain a copy of the news release, call Dan DeWeever, 212-273-8293.
CONTACT: Dan DeWeever, ChaseMellon Shareholder Services, L.L.C.,
212-273-8293.
<PAGE> 1
EXHIBIT (a)(18)
[COOKER LOGO]
September 18, 1998
5500 Village Boulevard
West Palm Beach, Florida 33407
(561) 615-6000
Dear Shareholder:
Cooker Restaurant Corporation has extended the expiration date of its
"Dutch Auction" issuer tender offer to purchase up to 4,000,000 shares of its
common stock at a price not greater than $12.00 nor less than $10.50 per share.
Enclosed is a Supplement to the Offer to Purchase, which amends and supplements
certain of the information contained in the Company's Offer to Purchase, dated
August 12, 1998 (the "Offer to Purchase"). Among other things, the Supplement
provides information regarding revised financing arrangements for the Offer.
The information contained in the enclosed Supplement should be read in
conjunction with the Offer to Purchase and related Letter of Transmittal, which
were mailed to you previously. I encourage you to read these materials carefully
before making any decision with respect to the Offer. Neither the Company nor
its Board of Directors makes any recommendation to any shareholder whether to
tender any or all shares.
The Company is not distributing new Letters of Transmittal or ancillary
documents with the enclosed Supplement. If you wish to tender shares, you should
use the Letter of Transmittal (and, if applicable, the Notice of Guaranteed
Delivery) mailed to you with the Offer to Purchase. Participants in the
Company's 401(k) Plan and Employee Stock Purchase Plan should follow the
instructions contained in the enclosed letter from Merrill Lynch Group Employee
Services. Participants in the Company's Employee Stock Option Plan should follow
the instructions contained in, and use the Direction Form mailed with, the
Memorandum, dated August 21, 1998, from the Company, as Plan Sponsor, and
Margaret Epperson, as Trustee. If you need additional copies of any of these
materials, please contact the Information Agent for the Offer, ChaseMellon
Shareholder Services, L.L.C., at (800) 549-9249.
Please note that the Offer is now scheduled to expire at 5:00 p.m., New
York City time, on Friday, September 25, 1998, unless further extended by the
Company. Questions regarding the Offer should be directed to ChaseMellon
Shareholder Services, L.L.C., the Information Agent for the Offer, at (800) 549-
9249, or Donaldson, Lufkin & Jenrette Securities Corporation, the Dealer Manager
for the Offer, at the telephone numbers set forth in the enclosed materials.
Sincerely,
/s/ G. Arthur Seelbinder
G. Arthur Seelbinder
Chairman and Chief Executive Officer
<PAGE> 1
EXHIBIT (a)(19)
COOKER RESTAURANT CORPORATION
OFFER TO PURCHASE FOR CASH
UP TO 4,000,000 SHARES OF ITS COMMON STOCK
AT A PURCHASE PRICE NOT GREATER THAN
$12.00 NOR LESS THAN $10.50 PER SHARE
THE OFFER HAS BEEN EXTENDED. THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS
EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
FRIDAY, SEPTEMBER 25, 1998, UNLESS THE OFFER IS FURTHER EXTENDED.
September 18, 1998
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
In our capacity as Dealer Manager, we are enclosing the material listed
below relating to the offer of Cooker Restaurant Corporation, an Ohio
corporation (the "Company"), to purchase up to 4,000,000 shares of its common
stock without par value (together with associated preferred stock purchase
rights issued pursuant to the Rights Agreement, dated as of February 1, 1990,
between the Company and National City Bank as Rights Agent, the "Shares"), at
prices not greater than $12.00 nor less than $10.50 per Share, net to the seller
in cash, specified by tendering shareholders, upon the terms and subject to the
conditions set forth in the Offer to Purchase dated August 12, 1998 (the "Offer
to Purchase"), as supplemented and amended by the Supplement to the Offer to
Purchase, dated September 18, 1998 (the "Supplement to the Offer to Purchase"),
and in the related Letter of Transmittal (which together constitute the
"Offer").
THIS OFFER IS NOT CONDITIONED UPON ANY MINIMUM NUMBER OF SHARES BEING
TENDERED. THE OFFER IS CONDITIONED UPON THE COMPANY HAVING OBTAINED SUFFICIENT
FINANCING TO FUND THE PURCHASE OF SHARES TENDERED IN THE OFFER AND PAY ALL
RELATED FEES AND EXPENSES. THE OFFER IS ALSO SUBJECT TO CERTAIN OTHER
CONDITIONS. SEE SECTION 6 OF THE OFFER TO PURCHASE AND SECTION 3 OF THE
SUPPLEMENT TO THE OFFER TO PURCHASE.
We are asking you to contact your clients for whom you hold Shares
registered in your name (or in the name of your nominee) or who hold Shares
registered in their own names. Please bring the Supplement to the Offer to
Purchase to their attention as promptly as possible. The Company will, upon
request, reimburse you for reasonable and customary handling and mailing
expenses incurred by you in forwarding any of the enclosed materials to your
clients.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are enclosing
the following documents:
1. The Supplement to the Offer to Purchase.
2. A letter to shareholders of the Company from G. Arthur Seelbinder,
Chairman and Chief Executive Officer.
The Company is not distributing new Letters of Transmittal or ancillary
documents with the enclosed Supplement. Shareholders who wish to tender shares
should use the Letter of Transmittal and ancillary documents mailed to them with
the Offer to Purchase. Additional copies of the Offer to Purchase, the
Supplement to the Offer to Purchase, the Letter of Transmittal and ancillary
documents may be obtained by contacting the Information Agent for the Offer,
ChaseMellon Shareholder Services, L.L.C., at (800) 549-9249.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER HAS
BEEN EXTENDED. PLEASE NOTE THAT THE OFFER, PRORATION PERIOD AND WITHDRAWAL
RIGHTS NOW EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FRIDAY, SEPTEMBER 25,
1998, UNLESS THE OFFER IS FURTHER EXTENDED.
<PAGE> 2
ANY QUESTIONS OR REQUESTS FOR ASSISTANCE MAY BE DIRECTED TO THE INFORMATION
AGENT OR THE DEALER MANAGER AT THEIR RESPECTIVE ADDRESSES AND TELEPHONE NUMBERS
SET FORTH ON THE BACK COVER OF THE ENCLOSED SUPPLEMENT TO THE OFFER TO PURCHASE.
ADDITIONAL COPIES OF THE ENCLOSED MATERIALS MAY BE REQUESTED FROM THE
INFORMATION AGENT.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON AS THE AGENT OF THE COMPANY, THE DEALER MANAGER, THE
INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE
ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH
THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS
CONTAINED THEREIN.
<PAGE> 1
EXHIBIT (a)(20)
[LETTERHEAD OF MERRILL LYNCH GROUP EMPLOYEE SERVICES]
September 17, 1998
Dear Client:
To all 401k participants, we have been advised that Cooker Restaurant
Corporation, has extended its offer to purchase for cash, up to 4,000,000 shares
of its Common Stock at a rate to be specified by the shareholder not in excess
of $12.00 nor less than $10.50 net per share.
The Company will determine a single per share purchase price that will allow it
to purchase 4,000,000 shares, taking into account the number of shares so
tendered and the prices specified by tendering shareholders. The Company will
first, purchase shares tendered by any holder of 99 or less shares of record
date August 11, 1998, and continues to hold 99 or less shares through September
25, 1998, who tenders all shares owned and who will expect the price to be
determined by the Company. The company will then purchase all other shares
tendered at or below the determined purchase price on a pro rata basis, if
necessary.
The offer is not conditioned upon any minimum number of shares being tendered.
The offer is, however, subject to certain other conditions. The shares are sold
without any brokerage fees or commissions. Please note that this offer may be
subject to proration.
Shareholders who have tendered shares pursuant to this offer need not take any
further action.
IF YOU WISH TO TENDER YOUR SHARES OF COOKER RESTAURANT CORPORATION COMMON STOCK
BASED ON THIS EXTENDED OFFER, YOU MUST CONTACT A CUSTOMER SERVICE REPRESENTATIVE
AT OUR TOLL-FREE CLIENT SERVICES NUMBER 1-800-228-4015 BY 3:30 P.M. (EASTERN
STANDARD TIME), THURSDAY, SEPTEMBER 24, 1998.
IN THE EVENT YOU CHOOSE TO WITHDRAW FROM THIS EXTENDED OFFER, AFTER HAVING
TENDERED YOUR HOLDINGS, WE MUST RECEIVE YOUR WITHDRAWAL INSTRUCTIONS BY 3:30
P.M. (EASTERN STANDARD TIME), THURSDAY, SEPTEMBER 24, 1998. OUR REPRESENTATIVES
ARE AVAILABLE MONDAY THROUGH FRIDAY 8:00 A.M. TO 7:00 P.M. (EST).
The above offer, proration period, and withdrawal rights will expire at 5:00
p.m. (Eastern Standard Time) on Friday, September 25, 1998, unless extended.
Sincerely,
Merrill Lynch Group Employee Services
<PAGE> 1
EXHIBIT (a)(21)
[LETTERHEAD OF MERRILL LYNCH GROUP EMPLOYEE SERVICES]
September 17, 1998
Dear Client:
We have been advised that Cooker Restaurant Corporation, has extended its offer
to purchase for cash, up to 4,000,000 shares of its Common Stock at a rate to be
specified by the shareholder not in excess of $12.00 nor less than $10.50 net
per share.
The Company will determine a single per share purchase price that will allow it
to purchase 4,000,000 shares, taking into account the number of shares so
tendered and the prices specified by tendering shareholders. The Company will
first, purchase shares tendered by any holder of 99 or less shares of record
date August 11, 1998, and continues to hold 99 or less shares through September
25, 1998, who tenders all shares owned and who will expect the price to be
determined by the Company. The company will then purchase all other shares
tendered at or below the determined purchase price on a pro rata basis, if
necessary.
The offer is not conditioned upon any minimum number of shares being tendered.
The offer is, however, subject to certain other conditions. The shares are sold
without any brokerage fees or commissions. Please note that this offer may be
subject to proration.
Shareholders who have tendered shares pursuant to this offer need not take any
further action.
IF YOU WISH TO TENDER YOUR SHARES OF COOKER RESTAURANT CORPORATION COMMON STOCK
BASED ON THIS EXTENDED OFFER, YOU MUST CONTACT A CUSTOMER SERVICE REPRESENTATIVE
AT OUR TOLL-FREE CLIENT SERVICES NUMBER 1-800-637-3766 (U.S. RESIDENTS) OR OUR
OVERSEAS CLIENT SERVICES NUMBER 1-732-563-7305 BY 3:30 P.M. (EASTERN STANDARD
TIME), THURSDAY, SEPTEMBER 24, 1998.
IN THE EVENT YOU CHOOSE TO WITHDRAW FROM THIS EXTENDED OFFER, AFTER HAVING
TENDERED YOUR HOLDINGS, WE MUST RECEIVE YOUR WITHDRAWAL INSTRUCTIONS BY 3:30
P.M. (EASTERN STANDARD TIME), THURSDAY, SEPTEMBER 24, 1998. OUR REPRESENTATIVES
ARE AVAILABLE MONDAY THROUGH FRIDAY 8:00 A.M. TO 7:00 P.M. (EST).
The above offer, proration period, and withdrawal rights will expire at 5:00
p.m. (Eastern Standard Time) on Friday, September 25, 1998, unless extended.
Sincerely,
Nick Cucinello
Reorganization Supervisor
Merrill Lynch Group Employee Services
<PAGE> 1
Exhibit (b)(3)
[THE CIT GROUP LETTERHEAD]
September 15, 1998
Mr. G. Arthur Seelbinder
Chairman of the Board/Chief Executive Officer
Cooker Restaurant Corporation
5500 Village Blvd.
West Palm Beach, FL 33407
Re: Proposed Loan by The CIT Group/Equipment Financing, Inc. to Cooker
Restaurant Corporation
Dear Arthur:
It is our pleasure to confirm the commitment of The CIT Group/Equipment
Financing, Inc. (CIT) to make a loan to Cooker Restaurant Corporation (Borrower)
in the principal sum of Eighteen Million Dollars ($18,000,000) to be secured a
first security interest. Our commitment is subject to the following terms and
conditions:
1. Amount
------
The amount of the loan will be the sum of $18,000,000 representing one
hundred percent (100%) of the Fair Market Value of the Equipment
described in Paragraph 2.
2. Equipment/Collateral
--------------------
The equipment to be used as collateral:
New and used restaurant equipment. All equipment and its location must
be acceptable to CIT at its sole discretion.
Our loan will be collateralized by a valid and perfected first security
interest in the above-mentioned equipment and all proceeds therein and
in addition all of the Borrower's now existing or hereafter acquired
equipment, including attachments, replacements, substitutions and
additions, and all proceeds of the foregoing, and such Equipment shall
not to be subject to any junior security interests.
3. Other Terms and Conditions
--------------------------
A. Borrower shall supply CIT with its audited financial
statements within 120 days of each fiscal year end and
internally prepared financial statements as of each fiscal
quarter end, together with a compliance certificate executed
by the Chief Financial Officer of Borrower.
B. Prior to funding, CIT shall have received any landlord or
mortgagee waivers as may be required by its counsel.
C. Prior to documentation, Cooker shall supply to CIT a copy of
its latest updated proforma financial statements, reflecting
changes in Borrower's debt or equity structure.
D. Cooker shall provided CIT with its current interim financial
statements prior to each funding.
E. Prior to funding, CIT shall have received a satisfactory bank
credit reference from First Union Bank.
F. Loan documents shall include financial covenants addressing:
a) its Tangible Net Worth, b) the ratio of Total Liabilities
to Tangible Net Worth, and c) a minimum Cash Flow Coverage
Ratio.
<PAGE> 2
4. Rate of Interest
----------------
The rate of interest upon the loan, prior to maturity, will be a fixed
rate equal to the Treasury Rate (as defined below plus 1.85. The
Treasury Rate shall be defined as the rate of interest per annum equal
to the yield to maturity on actively traded U.S. Treasury Securities
having a remaining term to maturity closest to the average life of the
contemplated loan.
5. Repayment
---------
The loan shall be repayable in fifty-nine (59) consecutive equal
monthly installments of principal and interest, and a final installment
for the balance of principal and interest then owing. The first of said
monthly installments being due and payable thirty (30) days following
the date of closing, and one on the same day of each and every month
thereafter until all are fully paid. Payments shall be calculated based
on an eight-four (84) month amortization. Payments shall be applied
first to interest upon the unpaid principal balance of the loan, and
any amount remaining after payment of interest shall be applied in
reduction of the principal.
6. Documentation
-------------
(a) The loan will be evidenced and secured by a note and security
agreement on the standard forms generally used by CIT.
(b) Borrower shall furnish to CIT UCC-1's for each unit of
equipment.
(c) All loan documentation must be reviewed and approved (as to
form and substance) by CIT and its counsel prior to closing.
7. Insurance
---------
Borrower shall furnish to CIT a certified copy of an insurance policy
in a minimum amount at least equal to the purchase price of all of the
Equipment, insuring, against any loss to the Equipment by reason of
collision, fire, theft and the other coverages usually afforded by an
ACV endorsement, such policy of insurance to be in form and issued by a
company reasonably satisfactory to CIT, containing such other
endorsements as CIT may reasonably require (including, without
limitation, an endorsement to the effect that the liability of the
insurance company to CIT, as mortgagee, will not be diminished or
impaired by any act or neglect of the Borrower), and with a long form
loss payable endorsement in favor of CIT.
In addition, CIT shall be furnished with a certified copy of public
liability insurance policy in minimum amounts reasonably satisfactory
to CIT.
CIT shall be named as an additional insured in the public liability
policy. All required policies of insurance (and any endorsements,
renewals, or replacements thereof) shall contain the written obligation
on the part of the insurance company to notify CIT at least thirty (30)
days prior to any termination, cancellation, or material amendment of
its policy, with opportunity by CIT to cure any nonpayment.
8. Prepayment
----------
CIT shall allow Borrower to prepay a prorata portion of its
indebtedness under the contemplated loan without penalty, provided the
following conditions exist: a) Borrower is disposing of specific
equipment, b) Borrower will not replace disposed equipment, and c) the
total value of the equipment disposed does not exceed $500,000 per
year.
9. Commitment Fee
--------------
In consideration of CIT's commitment, the Borrower has paid a
Commitment Fee to CIT of Twenty-Five Thousand Dollars ($25,000). Said
Commitment Fee is non-refundable whether or not the loan is closed for
any reason whatsoever, except as provided in Paragraph 15 hereof.
Borrower further expressly acknowledges that such Commitment Fee is
fair and reasonable compensation for this commitment, considering the
condition of the money market, the prevailing interest rates, the
credit worthiness of the Borrower, the likelihood of the loan being
made, the interest rate, and the other terms contained herein. This
Commitment Letter shall expire if not accepted by Borrower and received
by CIT by September 16, 1998.
<PAGE> 3
10. Additional Fees (If Any)
------------------------
Concurrent with each advance under the contemplated loan, Borrower
agrees to remit a fee equal to 0.5% of the amount funded.
11. Opinion of Borrower's Counsel
-----------------------------
If required by CIT, Borrower will furnish the opinion of its counsel to
the effect that all loan documents have been duly authorized and
executed and are valid, genuine and enforceable according to their
terms, subject only to bankruptcy, insolvency and other similar laws
affecting the rights of creditors generally and to general equity
principles, such opinion to cover such other matters as CIT or its
counsel may require (including, without limitation, an affirmative
opinion that the loan does not violate any applicable interest/usury
laws).
12. Additional Documentation
------------------------
In addition to the above-mentioned documentation, CIT shall be
furnished, at or prior to closing (a) a current certificate of good
standing, issued by the Secretary of State of Florida, reflecting the
good standing of Borrower in that state, (b) certified resolutions of
Borrower authorizing the obtaining of the loan and designating the
officer or officers to execute documents on behalf of the Borrower, and
(c) such other information and documentation as CIT or its Counsel may
reasonably require.
13. Closing/Expiration of Commitment
--------------------------------
The loan must close prior to the close of business on October 30, 1998,
when our commitment to make the loan shall expire and be of no further
force and effect.
14. Closing Costs and Fees
----------------------
All reasonable and customary loan costs, including but not limited to,
closing costs, attorneys' fees (including the fees of counsel for CIT),
recording fees and expenses, recording taxes and record searches are to
be paid by Borrower, whether or not the loan closes, as statements are
submitted, as these costs are being incurred on Borrower's behalf.
15. Change in Financial Condition, Corporate Structure, Business Prospects,
Etc.
-----------------------------------------------------------------------
If, in the reasonable judgment of CIT, there should occur, before the
closing of the loan, any material adverse change in the financial
condition or business prospects of the Borrower or any guarantor or any
other party to whom CIT may have recourse, then, at the option of CIT,
this commitment will become null and void. We specifically call your
attention to the fact that, in issuing this commitment, CIT is relying
upon the financial statement delivered to us by the Borrower and any
other party to whom CIT may have recourse, and the continuing
maintenance of their respective present corporate structures and stock
ownership. The Borrower shall be obligated to notify CIT of any
material adverse changes in the financial condition, corporate
structure, ownership or business prospects of any of the foregoing
which occur between the date hereof and the date of closing of the
loan.
If we exercise our right to terminate this commitment because of our
determination of material adverse change, we will refund the Commitment
Fee less any and all expenses incurred or accrued in our processing of
the contemplated loan.
<PAGE> 4
16. Assignment of Loan Commitment
-----------------------------
This commitment may not be assigned without the prior written consent
of CIT.
This commitment will only remain binding upon us if accepted by you and returned
so as to be received by us no later than September 16, 1998.
Should you have any questions regarding this commitment, please do not hesitate
to contact us.
Very truly yours,
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By /s/ Nancy Fricke Title Vice President
--------------------------- ----------------------------------------
Accepted on 9-16-89
-----------------
Borrower:
Cooker Restaurant Corporation
By /s/ Mark Mikosz VP-CFO
-------------------------- ----------------------------------------
<PAGE> 1
Exhibit (b)(4)
September 14, 1998
Mr. Mark W. Mikosz
Chief Financial Officer
Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, FL 33407
Dear Mark:
Thank you for the opportunity to make the following commitment to you.
NationsBank of Tennessee, N.A. (the "Bank") is pleased to have approved for
Cooker Restaurant Corporation, (the "Borrower") a credit facility consisting of
a term loan and a revolving line of credit in an amount not to exceed
$40,000,000 (the "Loan"). This commitment is to be used by you for the purpose
of refinancing debt and repurchasing common stock.
This commitment is subject to the execution and delivery to the Bank of legal
documents yet to be prepared, including, without limitation, loan agreements,
promissory notes, guaranties, and collateral and security documents. All such
documents must be satisfactory in form and substance to the Bank and its
counsel.
The making and funding of any loans under this commitment (in addition to any
other conditions which may be required in the documents referred to in the
preceding paragraph) is expressly subject to the terms and conditions set forth
in the attached Terms and Conditions. In particular, the attached terms and
conditions contemplate a $62,500,000 facility. In order to close this facility,
it will be necessary for First Union National Bank to fold in $22,500,000 of its
existing $33,000,000 facility as outlined in the attached Terms and Conditions.
We hereby consent to your filing of this commitment letter and attached term
sheet in filings to be made under the federal securities laws.
If you find the terms and conditions of this commitment to be acceptable to you,
please execute the enclosed copy of this letter and return it to the
undersigned. If not accepted, this commitment shall expire on September 17,
1998.
Sincerely,
/s/ William H. Diehl
William H. Diehl
Senior Vice President
Accepted and agreed to this 16 day of September, 1998.
Cooker Restaurant Corporation First Union National Bank
By: /s/ Mark W. Mikosz By: /s/ Walker Duvall
___________________ __________________
Title: VP-CFO Title:
<PAGE> 2
THE FOLLOWING INFORMATION REPRESENTS A SUMMARY OF GENERAL TERMS AND CONDITIONS
FOR A NEW $62,500,000 CREDIT FACILITY TO SUPPORT THE REPURCHASE OF COMMON STOCK
OF THE COOKER RESTAURANT CORPORATION AND FOR WORKING CAPITAL. THE FACILITY WOULD
CONSIST OF A $52,500,000 TERM LOAN AND $10,000,000 REVOLVING LINE OF CREDIT.
INDICATIVE TERMS AND CONDITIONS
SEPTEMBER 14, 1998
BORROWER: Cooker Restaurant Corporation and subsidiaries,
jointly and severally.
NATIONSBANK: NationsBank of Tennessee, N.A.
PURPOSE OF
CREDIT FACILITY: To fund the repurchase of up to $48,000,000 of
common stock of Cooker Restaurant Corporation and to
provide working capital. This will be a bridge loan that
can be converted to a term loan under certain
circumstances.
BRIDGE LOAN: A $52,500,000 Bridge Loan which will have a 66 month
maturity, subject to mandatory paydown in the event
certain conditions are not met by the second closing.
REVOLVING LINE
CREDIT: A $10,000,000 Revolving Line of Credit with a 66 month
maturity, subject to mandatory paydown in the event
certain conditions are not met by the second closing.
Borrower will pay a non-use fee of 1/4% per annum on
the average unused portion of the Revolving Line of
Credit, payable quarterly in arrears.
INTEREST RATE: The rate of interest charged on the Bridge Loan and
the Revolving Line of Credit will be the 30-day LIBO
Rate (as determined by NationsBank and adjusted for
reserves) plus the Applicable Margin. The Applicable
Margin will be based upon the ratio of Funded Debt to
EBITDA on a rolling four quarter basis determined
under the following table:
<PAGE> 3
<TABLE>
<CAPTION>
Ratio of Funded
Debt to EBITDA Applicable Margin
-------------- -----------------
<S> <C> <C>
=> 4.0 to 1.0 2.25%
=> 3.0 to 1.0 but
< 4.0 to 1.0 2.0%
=> 2.5 to 1.0 but
< 3.0 to 1.0 1.50%
=>2.0 to 1.0 but
<2.5 to 1.0 1.25%
< 2.0 to 1.0 1.0%
</TABLE>
COMMITMENT FEE: A commitment fee of 25 basis points will be payable
at closing.
AGENT'S FEE: $25,000 annually, payable in advance.
INITIAL COLLATERAL: The credit facility would be secured by a first
mortgage on 25 restaurant properties owned by the
Borrower. Attached as Annex 1 is a list of those
properties. On the first closing date, the Borrower
shall be required to execute and deliver to
NationsBank first priority mortgages and/or deeds of
trust on the fee simple interest and improvements and
fixtures on the 25 properties. NationsBank will
record the mortgages on the 25 properties. On the
closing date, NationsBank will not require a
mortgagee title insurance policy covering the 25
properties but instead will require an updated
commitment or title search bringing down the owner's
title policies on the 25 properties. Borrower shall
also assign its rights under its existing title
insurance policies covering the 25 properties. The
Borrower will also execute a negative pledge
agreement on the 11 restaurants described on Annex 2.
PERIOD BETWEEN
FIRST CLOSING AND
SECOND CLOSING: For the period of 180 days following the First
Closing Date, the Borrower shall have the opportunity
to find permanent financing on some or all of the 36
properties that comprise the Collateral. During this
period, Borrower shall not further encumber any of
the 36 properties. The negative pledge agreement
referenced above shall be in effect. At the end of
the 180 day period or upon an earlier default, any
properties that the Borrower has not refinanced and
applied the net proceeds against the Term Loan would
then be the subject of a second closing.
By the 30th day following the first closing, Borrower
shall execute
<PAGE> 4
and deliver to NationsBank mortgages and/or deeds of
trust on the 11 properties identified in Annex 2. These
mortgages and deeds of trust will be held in escrow by
NationsBank for the remainder of the 180-day term or the
earlier default by Borrower.
On or before 90 days following the first closing,
Borrower shall identify those of the 36 properties that
will be refinanced through another program sponsored by
NationsBank or another lender. The properties so
identified will be referred to as the "Refinanced
Properties." The remaining properties, together with any
substitute or additional properties acceptable to
Lenders, provided by Borrower, will be the collateral
for the remaining 5 years of the term loan and the
remaining 5 years of the line of credit and shall be
referred to as the "Permanent Collateral."
The second closing for the Permanent Collateral shall
occur on or before 6 months following the first closing
date. All of the Permanent Collateral will be subject to
deeds of trust and/or mortgages in favor of NationsBank
and for which NationsBank shall have obtained or
received the following: (1) a first priority deed of
trust and/or mortgage; (2) a mortgagee's title insurance
policy on each of the restaurants comprising the
Permanent Collateral issued by a title insurance company
acceptable to NationsBank with all printed exceptions
deleted and containing only those exceptions that are
acceptable to NationsBank; (3) an appraisal on each
property comprising the Permanent Collateral performed
by an appraiser engaged by NationsBank which appraisal
shall be conducted in conformance with FIRREA
requirements; (4) current surveys for each property in
form and content acceptable to NationsBank; and (5) a
Level One environmental survey and environmental
indemnity agreement for each property satisfactory to
NationsBank. Each property that satisfies the above
conditions will be referred to as an "Acceptable
Property" and collectively the "Acceptable Properties."
Borrower may provide additional and/or substitute
properties acceptable to Lenders which will also be
considered "Acceptable Properties" if they meet the
foregoing criteria. Upon a sale, casualty loss or
condemnation affecting an Acceptable Property and so
long as Borrower is not in default, Borrower may propose
to substitute a property of equal or greater value to
the affected Acceptable Property and, if approved by
Lenders and if the proposed property meets all the
criteria as an Acceptable Property, the affected
Acceptable Property will be released from Lenders' lien
upon substitution of the property so proposed by
Borrower and approved by Lenders without payment of
release consideration. The amount
<PAGE> 5
of the permanent facility will be 70% of the appraised
value of the Acceptable Properties ("Renewal Amount").
At the second closing the $62,500,000 facility shall be
paid down to the Renewal Amount. At the Borrower's
option, the Renewal Amount may be entirely in the form
of a term note or a portion of it may be a revolving
line of credit. To the extent that a portion is a
revolving line of credit, it may not exceed
$10,000,000.00. In conjunction with the second closing,
Borrower shall pay all costs and expenses associated
with the second closing including, but not limited to,
indebtedness tax, recording fees, mortgagee title
premium, survey costs, appraisal costs, legal fees, and
environmental surveys.
PERMANENT LOAN: The permanent loan in the Renewal Amount, consisting
of a term loan or a term loan and revolving line of
credit will have a 60 month maturity from the date of
the second closing. Any portion of the permanent loan
that is a term loan held by First Union will have a
84 month mortgage amortization with a 60 month
balloon and any portion held by NationsBank will have
a 180 month level principal amortization with a 60
month balloon. The revolving line of credit will
have a maturity of 60 months from the Second Closing.
PRIOR TITLE
POLICIES: Prior to the first closing, Borrower shall promptly
furnish to NationsBank copies of existing owner's
policies for the 25 properties, together with
surveys, copies of the printed exceptions shown on
those title policies, environmental reports,
appraisals, and other information required by
NationsBank.
FIXED CHARGE
COVERAGE RATIO: Borrower shall maintain a fixed charge coverage ratio
of at least 1.2 to 1.0. This is defined as net
income plus depreciation, plus interest expense, plus
operating lease expenses, divided by current
maturities of long term debt (including capital
leases) plus interest expense, plus operating lease
expense plus dividends, computed on a rolling four
quarter basis.
SENIOR FUNDED DEBT
TO EBITDA RATIO: Borrower shall maintain a senior funded debt to
EBITDA ratio of no more than 4.0 to 1.0 for the
fiscal year ended December 31, 1998; 3.25 to 1.0 for
the fiscal year ended December 31, 1999; and 2.75 to
1.0 for the fiscal year ended December 31, 2000 and
years thereafter. This is defined as funded debt
(including capital leases) but excluding subordinated
debt divided by EBITDA, computed on a rolling four
quarter basis.
<PAGE> 6
RENT COVERAGE
RATIO: Borrower shall maintain a rent adjusted funded debt
to EBITDAR ratio of no more than 4.25 to 1 for the
fiscal year ended December 31, 1998; 4.00 to 1 for
the fiscal year ended December 31, 1999; and 3.5 to 1
for the fiscal year ending December 31, 2000 and
years thereafter. This is defined as (Senior Funded
Debt plus (operating lease expense times 8)) divided
by EBITDAR, computed on a rolling four quarter basis.
DEBT LIMITATIONS: Borrower may borrow up to $20,000,000.00
from CIT for equipment financing in 1998 in the form of
capitalized leases, plus additional financing for new
stores and equipment in future years, subject to
compliance with financial covenants.
INTEREST RATE
HEDGE PROGRAM: Borrower shall enter into a hedge program for at
least 40% of the Credit Facility to protect itself from
interest rate fluctuations.
<PAGE> 7
CONDITIONS
TO FIRST CLOSING: Customary for financings of this nature, including,
but not limited to, completion of due diligence,
appraisals, no disruption of financial and capital
markets, insurance coverage, executed documents,
legal opinions, copies of environmental studies,
corporate resolutions, certificates of good standing,
and others deemed necessary by NationsBank all in
form and substance acceptable to NationsBank.
Commitments from First Union to refinance $22,500,000 of
its existing facility as a part of this Credit Facility.
NationsBank will retain $40,000,000 of the Facility
(inclusive of a participation of $10,000,000 to
AmSouth).
Title searches bringing down the existing owner's
policies on the 25 properties showing no material liens
and encumbrances.
No material adverse change in the condition of the
Borrower from the date hereof to the closing.
NationsBank shall be satisfied with the terms of the
Subordinated Debt issue. The amount outstanding as of
the Closing Date shall be at least $13,000,000.00.
Satisfactory assessment by NationsBank of Borrower's
Year 2000 preparedness.
REPRESENTATIONS
AND WARRANTIES: Usual and customary in a financing of this nature,
including, but not limited to:
Borrower's projections fairly reflect its financial
condition and there has been no material adverse
change in the Borrower's condition since the date
of their issuance;
The Borrower has good and legal title to all
properties and all are free and clear of liens,
except as permitted hereunder;
And any other Representations and Warranties deemed
necessary by NationsBank.
BORROWER
COVENANTS: Borrower will provide to NationsBank (a) within 150
days after each fiscal year end audited financial
statements for the Borrower, in form and substance
satisfactory to NationsBank, performed and
<PAGE> 8
certified by an independent auditor and accompanied by a
covenant compliance certificate, (b) within 45 days
after each fiscal quarter financial statements for the
Borrower for such quarter and year to date and a
covenant compliance certificate, certified by the an
Officer, satisfactory to NationsBank, of the Borrower,
and (c) within 60 days after the beginning of each
fiscal year copies of the Borrower's annual budget;
Borrower shall not change its fiscal year end without
the consent of NationsBank;
Borrower shall maintain insurance on its assets in all
respects satisfactory to NationsBank, including (a)
casualty insurance against all risk of physical loss
without deduction for depreciation but in no event less
than the total outstanding debt (principal and current
interest), (b) use and occupancy insurance covering
either rental income or business interruption with
coverage in an amount satisfactory to NationsBank, and
(c) comprehensive general liability insurance covering
the subject property in an amount satisfactory to
NationsBank;
Other covenants customary for financings of this nature,
including (but not limited to): corporate existence,
maintenance of property and insurance, conduct of
business, limitation on future debt, payment of taxes
and compliance with laws, use of proceeds, and
limitations on consolidations, mergers, acquisitions,
sale of assets and inter-company transactions to be
determined.
Maintenance of all licenses, permits, etc.
Borrower shall not pay dividends if it is in default, or
after giving effect the payment would be in default.
EVENTS OF DEFAULT: Customary for financing of this nature.
NATIONSBANK
COUNSEL: Neal & Harwell, PLC
ASSIGNMENTS/
PARTICIPATIONS AND
VOTING RIGHTS: Customary for financings of this nature.
GOVERNING LAW: State of Tennessee.
<PAGE> 9
CHANGE OF
CIRCUMSTANCES: Customary provisions protecting NationsBank in the
event of unavailability of funding, illegality,
capital adequacy requirements, increased costs,
withholding taxes and funding losses.
EXPENSES: Borrower will pay all reasonable costs and expenses
of NationsBank, associated with the preparation, due
diligence, administration, syndication and
enforcement of all documents executed in connection
with the Credit Facility, including without
limitation, all legal and professional fees
regardless of whether or not the Credit Facility is
closed.
<PAGE> 10
ANNEX 1
<TABLE>
<S> <C> <C> <C>
107 Hermitage Cooker Owned 110 Parkway Cooker Owned
4770 Lebanon Road 6,100 1211 Murfreesboro Road 7,200
Hermitage, TN 37076 Opened: 4/5/84 Nashville, TN 37217-2400 Opened: 12/9/86
615-883-9700 Seats: 188 615-361-4747 Seats: 220
112 Cleveland Ave. Cooker Owned 114 Rivergate Cooker Owned
6193 Cleveland Avenue 7,800 317 Bluebird Lane 8,100
Columbus, OH 43229 Opened: 12/06/87 Goodlettsville, TN Opened:
614-899-7000 Seats: 226 37072-2303 10/24/88
615-859-2756 Seats: 255
117 East Main Cooker Owned 118 Cincinnati Cooker Owned
5225 East Main Street 7,240 8850 Governor's Hill Drive 9,100
Columbus, OH 43213-2503 Opened: 8/12/90 Cincinnati, OH 45249-1337 Opened: 02/02/90
614-759-6700 Seats: 220 513-677-3100 Seats: 254
120 Dayton Cooker Owned 122 Auburn Hills Cooker Owned
1383 Miamisburg-Centerville Rd. 7,700 3773 East Walton Boulevard 8,200
Dayton, OH 45459-3852 Opened: 11/17/91 Auburn Hills, MI 48326-2237 Opened: 5/31/92
513-439-4660 Seats: 243 810-373-5050 Seats: 252
124 Westlake Cooker Owned 126 North High Cooker Owned
857 Columbia Road 6,700 8360 North High Street 8,200
Westlake, OH 44145-1427 Opened: 11/1/92 Columbus, OH 43235-6403 Opened: 12/20/92
216-899-9494 Seats: 210 614-438-5800 Seats: 252
129 Springdale Cooker Owned 130 Novi Cooker Owned
11333 Princeton Pike 9,433 39581 12 Mile Road 7,200
Springdale, OH 45246-3201 Opened: 5/23/93 Novi, MI 48377 Opened: 10/3/93
513-772-4546 Seats: 286 810-380-2600 Seats: 242
132 Toledo Cooker Owned 144 Solon Cooker Owned
5628 Airport Highway 7,200 6150 SOM Center Road 7,200
Holland, OH 43528 Opened: 10/31/93 Solon, OH 44139 Opened:
419-867-4994 Seats: 242 216-519-9800 11/18/95
Seats: 240
148 Vandalia Cooker Owned 150 Beavercreek Cooker Owned
7580 Poe Avenue 9,039 2819 Centre Drive 7,667
Dayton, OH 45414 Opened: 5/20/96 Beavercreek, OH 45431 Opened: 6/13/96
513-454-1100 Seats: 292 513-427-4700 Seats: 240
</TABLE>
<PAGE> 11
<TABLE>
<S> <C> <C> <C>
151 Sterling Heights Cooker Owned 152 Boardman Cooker Owned
14425 Lakeside Circle 9,169 1247 Boardman Poland Road 9,036
Sterling Heights, MI 48313 Opened: 6/24/96 Boardman, OH 44514 Opened: 07/01/96
810-566-9597 Seats: 280 330-629-6161 Seats: 292
156 Saginaw Cooker Owned 157 Grand Rapids Owned
3870 Bay Road 9,169 3050 Alpine Road 9,036
Saginaw, MI 48603 Opened: 02/17/97 Walker, MI 49504 Opened: 3/3/97
517-249-8570 Seats: 296 616-785-3242 Seats: 284
159 Beechmont Owned 162 Mentor Owned
8600 Beechmont 9,036 7787 Reynolds Road 7,755
Cincinnati, OH 45225 Opened: 3/17/97 Mentor, OH 44060-5320 Opened: 8/25/97
513-474-1299 Seats: 296 440-269-8480 Seats: 266
164 Canton Owned 165 Cuyahoga Falls Owned
41980 Ford Road 8,590 283 Howe Ave. 7,050
Canton, MI 48187-3647 Opened: 8/11/97 Cuyahoga Falls, OH Opened: 12/15/97
313-981-6595 Seats: 284 44221-4915 Seats: 266
330-929-2322
171 Troy Owned
5460 Corporate Dr. 7,755
Troy, MI 48098 Opened: 3/23/98
248-952-5801 Seats: 266
</TABLE>
<PAGE> 12
ANNEX 2
<TABLE>
<S> <C> <C> <C>
127 Willow Lake Cooker Owned 133 East Memphis Cooker Owned
2801 Lake Circle Drive 7,865 6980 Winchester Road 7,200
Indianapolis, IN 46268-4205 Opened: 3/14/93 Memphis, TN 38115 Opened: 10/31/93
317-471-1111 Seats: 262 901-367-1999 Seats: 242
134 Raleigh Cooker Owned 135 Fairlakes Cooker Owned
4516 Falls of Neuse Road 7,200 12950 Fair Lakes Shopping Ctr 7,200
Raleigh, NC 27609 Opened: 12/12/93 Fairfax, VA 22003 Opened: 12/19/93
919-981-7400 Seats: 242 703-802-1050 Seats: 242
146 Murfreesboro Cooker Owned 147 Gwinnett Cooker Owned
730 N.W. Broad St. 7,667 1590 Pleasant Hill Road 9,169
Murfreesboro, TN 37219 Opened: 3/2/96 Duluth, GA 30136 Opened: 05/06/96
615-895-6400 Seats: 234 770-717-5020 Seats: 288
149 Town Center Cooker Owned 158 Chesapeake Owned
790 Cobb Place Boulevard 9,036 628 Jarman Road 7,800
Kennesaw, GA 30144 Opened: 5/27/96 Chesapeake, VA 23320 Opened: 3/17/97
770-424-2925 Seats: 292 757-424-7800 Seats: 240
161 Chattanooga Owned 176 Knoxville Cooker Owned
2225 Gunbarrell Road 7,067 106 Major Reynolds Road 7,755
Chattanooga, TN 37421 Opened: 6/23/97 Knoxville, TN 37919 Opened: 09/15/98
423-954-3020 Seats: 224 423-330-0202 Seats: 266
172 Augusta Owned
276 Robert C. Daniel 7,755
Jr. Parkway Opened: 3/18/98
Augusta, GA 30909 Seats: 266
706-737-2600
</TABLE>
<PAGE> 1
[FIRST UNION LETTERHEAD]
Exhibit (b)(5)
September 16, 1998
Mr. Mark W. Mikosz
Chief Financing Officer
Cooker Restaurant Corporation
5500 Village Blvd.
West Palm Beach, FL 33407
Dear Mark:
First Union National Bank ("First Union") is pleased to advise Cooker
Restaurant Corporation ("Cooker") of its commitment to participate in the
$62,500,000 term loan and revolving credit facility ("New Loan") to be arranged
by NationsBank of Tennessee, N.A. ("NationsBank"), pursuant to the letter to
Cooker from NationsBank, dated September 14, 1998, on the terms and conditions
set forth in such letter and its attached term sheet. First Union's commitment
is in an amount not to exceed $22,500,000.00. This commitment is subject to the
execution and delivery to First Union of legal documents yet to be prepared,
including, without limitation, loan agreements, promissory notes, guaranties,
and collateral and security documents, and is further subject to closing of the
financing between NationsBank and Cooker, and between Cooker and The CIT Group
("CIT"), each in the amounts described in that term sheet. All such documents
and terms of financing must be satisfactory in form and substance to First Union
and its counsel.
At the closing of such loan, Cooker agrees to repay 100% of the amount
outstanding plus interest accrued to the date of repayment under Cooker is
existing $33,000,000 credit facility with First Union, except that at the
election of First Union an amount of the existing loan equal to the First Union
commitment under the new Term Loan may be treated as remaining outstanding but
being recharacterized as a new term loan under and governed by the terms of the
new loan documents rather than the existing documents. This commitment is to be
used by Cooker for the purpose of refinancing debt and repurchasing common
stock.
In the event the foregoing described new financing closes, we are agreeable
to equipment financing between Cooker and CIT in the amounts set forth in the
above described term sheet, subject to our approval of the definitive loan
documents relating thereto. Note that our consent to the financing with CIT is
expressly subject to the condition that the closing of the New Loan occurs. If
the New Loan does not close, the proposed financing with CIT would result in a
default under the Amended and Restated Loan
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Agreement, dated December 22, 1995, as amended, between First Union and Cooker.
Sincerely,
First Union National Bank
By /s/ M. Walker Duvall
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M. Walker Duvall, SVP
Accepted and agreed to this 17 day of September, 1998
Cooker Restaurant Corporation
By: /s/ Mark W. Mikosz
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Title: VP-CFO
MIA4-658203
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Exhibit (c)(10)
G. Arthur Seelbinder
148 Seagate
Palm Beach, Florida 33480
September 17, 1998
Board of Directors
Cooker Restaurant Corporation (the "Company")
5500 Village Boulevard
West Palm Beach, Florida 33407
Re: Issuer Tender Offer on Schedule 13E-4
Dear Sirs:
Reference is hereby made to (i) that Amended and Restated Grid Time
Promissory Note (Eurodollar/Prime Rate), dated January 31, 1997, which is in
the initial amount of approximately $5 million and which with capitalized
interest may become much as $6.25 million (as amended, the "Guaranteed Loan"),
(ii) that Amended and Restated Guaranty, dated as of January 31, 1997 (as
amended, the "Guaranty"), issued by the Company in favor of The Chase
Manhattan Bank (the "Bank"), (iii) the proposed Dutch Auction issuer tender
offer (the "Offer") to be made by the Company for up to 4 million shares of the
Company's common stock, without par value (the "Common Stock") and (iv) the
letter, dated August 11, 1998 from the undersigned to the Company (the
"Letter"). The contents of the Letter are hereby amended and superseded.
In consideration of the Guaranty, the undersigned hereby informs the Board
of Directors and commits to the Company as follows:
1. The undersigned intends to tender up to 737,562 shares of Common Stock
in the Offer. The undersigned intends to apply the approximate amount of the
after tax proceeds of such number of the first 167,562 of such shares as are
accepted for payment to repay certain personal indebtedness and tax liabilities,
and to apply the approximate amount of the net after tax proceeds of such number
of the remaining 570,000 of such shares as are accepted for payment to repay a
portion of the Guaranteed Loan.
2. Following the consummation of the Offer and the repayment of a portion
of the Guaranteed Loan using such proceeds, I intend to discuss with the Bank or
other financing sources the refinancing of the balance of the Guaranteed Loan.
Sincerely,
/s/ G. Arthur Seelbinder
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G. Arthur Seelbinder
