UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the quarterly period ended March 29, 1998
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 For the transition period from to
Commission File Number: 0-19542
APPLE SOUTH, INC.
(Exact name of registrant as specified in its charter)
Georgia 59-2778983
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Hancock at Washington, Madison, GA 30650
(Address of principal executive offices) (Zip Code)
706-342-4552
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
X Yes No
As of May 11, 1998, there were 36,964,625 shares of common stock of the
Registrant outstanding.
<PAGE>
APPLE SOUTH, INC.
QUARTERLY REPORT ON FORM 10-Q
FOR THE QUARTER ENDED MARCH 29, 1998
INDEX
Part I - Financial Information Page
Item 1 - Consolidated Financial Statements:
Consolidated Statements of Earnings..........................3
Consolidated Balance Sheets..................................4
Consolidated Statements of Shareholders' Equity..............5
Consolidated Statements of Cash Flows........................6
Notes to Consolidated Financial Statements...................7
Item 2 - Management's Discussion and Analysis of
Financial Condition and Results of Operations...............10
Part II - Other Information
Item 6 - Exhibits and Reports on Form 8-K............................14
Signature ............................................................15
Page 2
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<TABLE>
Apple South, Inc.
Consolidated Statements of Earnings
(Unaudited)
(In thousands, except per share data)
<CAPTION>
Quarter Ended
- ------------------------------------------------------------------------------------------------------------------------------------
March 29, March 30,
1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Restaurant sales:
Applebee's $ 125,763 111,784
Don Pablo's 59,263 40,402
Hops 23,327 4,729
McCormick & Schmick's 21,342 7,324
Canyon Cafes 11,981 -
Other - 7,214
- ------------------------------------------------------------------------------------------------------------------------------------
Total restaurant sales 241,676 171,453
- ------------------------------------------------------------------------------------------------------------------------------------
Restaurant operating expenses:
Food and beverage 67,317 47,847
Payroll and benefits 78,648 52,338
Depreciation and amortization 4,204 6,845
Other operating expenses 56,458 39,558
- ------------------------------------------------------------------------------------------------------------------------------------
Total restaurant operating expenses 206,627 146,588
- ------------------------------------------------------------------------------------------------------------------------------------
General and administrative expenses 12,915 8,614
- ------------------------------------------------------------------------------------------------------------------------------------
Operating income 22,134 16,251
- ------------------------------------------------------------------------------------------------------------------------------------
Other income (expense):
Interest expense (7,146) (3,927)
Distributions on preferred securities (2,012) (375)
Gain on disposal of assets held for sale 49,000 -
Income from investments carried at equity 703 -
Other, primarily goodwill amortization (1,322) (657)
Interest income 7 51
- ------------------------------------------------------------------------------------------------------------------------------------
Total other income (expense) 39,230 (4,908)
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings before income taxes and cumulative
effect of change in accounting principle 61,364 11,343
Income taxes 22,825 4,075
- ------------------------------------------------------------------------------------------------------------------------------------
Earnings before cumulative effect of
change in accounting principle 38,539 7,268
- ------------------------------------------------------------------------------------------------------------------------------------
Cumulative effect of change in accounting
principle, net of tax benefit 1,461 -
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings $ 37,078 7,268
====================================================================================================================================
Basic earnings per common share:
Basic earnings before cumulative effect of
change in accounting principle $ 0.99 0.19
Cumulative effect of change in accounting principle (0.04) -
- ------------------------------------------------------------------------------------------------------------------------------------
Basic earnings per common share $ 0.95 0.19
====================================================================================================================================
Diluted earnings per common share:
Diluted earnings before cumulative effect of
change in accounting principle $ 0.85 0.19
Cumulative effect of change in accounting principle (0.03) -
- ------------------------------------------------------------------------------------------------------------------------------------
Diluted earnings per common share $ 0.82 0.19
====================================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
Page 3
<PAGE>
<TABLE>
Apple South, Inc.
Consolidated Balance Sheets
(Unaudited)
(In thousands, except share data)
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
March 29, December 28,
1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 2,231 2,503
Proceeds due from sale of assets 94,749 -
Short-term investments 27 37
Accounts receivable 11,995 8,983
Inventories 11,025 10,732
Prepaid expenses and other 7,544 9,047
Assets held for sale 304,175 331,104
- ------------------------------------------------------------------------------------------------------------------------------------
Total current assets 431,746 362,406
Premises and equipment, net 307,199 283,839
Goodwill, net 136,376 138,403
Other assets 27,865 19,641
- ------------------------------------------------------------------------------------------------------------------------------------
$ 903,186 804,289
====================================================================================================================================
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable $ 21,739 24,819
Accrued liabilities 51,446 40,266
Current installments of long-term debt 211 206
Income taxes 18,049 -
- ------------------------------------------------------------------------------------------------------------------------------------
Total current liabilities 91,445 65,291
Long-term debt 414,751 381,843
Deferred income taxes 16,000 14,231
Other long-term liabilities 8,248 7,142
- ------------------------------------------------------------------------------------------------------------------------------------
Total liabilities 530,444 468,507
- ------------------------------------------------------------------------------------------------------------------------------------
Company-obligated mandatorily redeemable preferred securities
of Apple South Financing I, a subsidiary holding solely
Apple South, Inc. 7% convertible subordinated debentures
due March 1, 2027 115,000 115,000
Shareholders' equity:
Preferred stock, $0.01 par value. Authorized 10,000,000 shares;
none issued - -
Common stock, $0.01 par value. Authorized 75,000,000 shares;
40,478,760 issued in 1998 and 1997 405 405
Additional paid-in capital 145,303 145,269
Retained earnings 134,726 97,905
Treasury stock at cost; 1,657,546 shares in 1998 and 1,662,812
shares in 1997 (22,692) (22,797)
- ------------------------------------------------------------------------------------------------------------------------------------
Total shareholders' equity 257,742 220,782
- -----------------------------------------------------------------------------------------------------------------------------------
$ 903,186 804,289
====================================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
Page 4
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<TABLE>
Apple South, Inc.
Consolidated Statements of Shareholders' Equity
(Unaudited)
(In thousands, except per share data)
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Additional Total
Common Stock Paid-in Retained Treasury Shareholders'
Shares Amount Capital Earnings Stock Equity
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 28, 1997 40,479 $405 $145,269 $97,905 ($22,797) $220,782
Net earnings - - - 37,078 - 37,078
Purchase of common stock - - - - (113) (113)
Common stock issued to ESOP and ESPP - - 36 - 206 242
Exercise of options - - (2) - 12 10
Foreign currency translation adjustment - - - 148 - 148
Cash dividends ($0.01 per share) - - - (405) - (405)
- ------------------------------------------------------------------------------------------------------------------------------------
Balance at March 29, 1998 40,479 $405 $145,303 $134,726 ($22,692) $257,742
====================================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
Page 5
<PAGE>
<TABLE>
Apple South, Inc.
Consolidated Statements of Cash Flows
(Unaudited)
(In thousands)
<CAPTION>
Quarter Ended
- ------------------------------------------------------------------------------------------------------------------------------------
March 29, March 30,
1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash flows from operating activities:
Net earnings $ 37,078 7,268
Adjustments to reconcile net earnings to net cash
provided by operating activities:
Depreciation and amortization 5,665 7,825
Deferred income taxes 1,769 -
Gain on sale of assets (49,000) -
(Increase) in assets:
Accounts receivable (3,012) (1,954)
Inventories (883) (571)
Prepaid expenses and other (2,233) (45)
Increase (decrease) in liabilities:
Accounts payable (3,080) (4,584)
Accrued liabilities 8,690 2,700
Income taxes 18,049 (210)
Other long-term liabilities 1,106 164
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 14,149 10,593
- ------------------------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Capital expenditures (40,088) (26,369)
Acquisition of businesses, net of cash acquired - (106,240)
Proceeds from sale of premises and equipment 414 -
Decrease in short-term investments 10 15
Additions to franchise costs - (239)
Additions to other assets (7,152) (1,602)
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities (46,816) (134,435)
- ------------------------------------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Net proceeds from revolving credit agreements 32,966 33,500
Proceeds from issuance of preferred securities, net of issue costs - 111,261
Principal payments on long-term debt (53) (372)
Proceeds from issuance of common stock - 918
Dividends declared and paid (405) (313)
Purchase of treasury stock (113) (15,640)
- ------------------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 32,395 129,354
- ------------------------------------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash and cash equivalents (272) 5,512
Cash and cash equivalents at the beginning of the period 2,503 3,923
- ------------------------------------------------------------------------------------------------------------------------------------
Cash and cash equivalents at the end of the period $ 2,231 9,435
====================================================================================================================================
</TABLE>
See accompanying notes to consolidated financial statements.
Page 6
<PAGE>
APPLE SOUTH, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
March 29, 1998
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X promulgated by the Securities and Exchange Commission.
Accordingly, they do not include all of the information and footnotes required
by generally accepted accounting principles for annual financial statement
reporting purposes. However, there has been no material change in the
information disclosed in the consolidated financial statements included in the
Company's Annual Report on Form 10-K for the year ended December 28, 1997,
except as disclosed herein. In the opinion of management, all adjustments,
consisting only of normal recurring accruals, considered necessary for a fair
presentation have been included. Operating results for the quarter ended March
29, 1998 are not necessarily indicative of the results that may be expected for
the year ending January 3, 1999.
NOTE 2 - APPLEBEE'S DIVESTITURE
On March 29, 1998, the Company completed the sale of 33 of its franchised
Applebee's Neighborhood Grill & Bar ("Applebee's") restaurants. Total proceeds
from the sale were $94.7 million in cash, reflecting $93.4 million for 32
restaurants, as originally disclosed in a Form 8-K filed by the Company on
January 15, 1998, plus $1.3 million for one additional restaurant and other
routine closing adjustments. The Company recorded a pre-tax gain on the sale of
$49.0 million ($30.4 million after-tax). Proceeds from the transaction, which
closed as of the close of business on Sunday, March 29, 1998, were received by
the Company on Monday, March 30, 1998, and as such, $94.7 million is reflected
in the accompanying consolidated balance sheet as "Proceeds due from sale of
assets". The remaining premises and equipment, franchise costs and goodwill
related to the Applebee's division are included in "Assets held for sale".
Depreciation and amortization on the long-lived assets were suspended on
December 16, 1997, when management finalized the decision to dispose of the
division.
NOTE 3 - CUMULATIVE EFFECT OF CHANGE IN ACCOUNTING PRINCIPLE
At the beginning of fiscal 1998, the Company adopted AICPA Statement of Position
98-5, "Reporting the Cost of Start-Up Activities." This statement requires
entities to expense the costs of start-up activities as incurred. As a result of
the adoption of this change in accounting policy, from expensing preopening
costs in the first full month of a restaurant's operations to expensing them as
incurred, the Company recorded a cumulative effect charge from the change in
accounting principle of $2.2 million ($1.5 million net of tax benefit).
NOTE 4 - EQUITY INVESTMENTS
On January 14, 1998, the Company acquired a 20% interest in Belgo Group, PLC
("Belgo"), a public restaurant company based in the United Kingdom that owns and
operates two Belgo restaurants in London, for $6.1 million. The Company accounts
for its investment in Belgo under the equity method of accounting.
Page 7
<PAGE>
Accordingly, the Company's interest in Belgo's net earnings is included in
"Income from investments carried at equity" in the accompanying consolidated
statement of earnings. The Company's investment is included in "Other assets" in
the accompanying consolidated balance sheet. The investment is translated into
U.S. dollars at the period-end exchange rate, while net earnings are translated
at the average exchange rate during the period. The resulting translation
adjustments are recorded as a component of shareholders' equity and
comprehensive income (Note 9).
Subsequent to March 29, 1998, the Company sold its Harrigan's division,
retaining a 25% equity interest in the ongoing business. The Company received
$3.0 million in cash plus a $4.0 million note and additionally retained
ownership of the real estate for two Harrigan's locations which are being leased
to the new entity. The interest in Harrigan's will be accounted for using the
equity method of accounting with net earnings included in "Income from
investments carried at equity" and amounts for the quarter ended March 29, 1998
have been reclassified in the accompanying consolidated statement of earnings.
NOTE 5 - SHAREHOLDERS' EQUITY
Cash dividends declared and paid in the quarter ended March 29, 1998 totaled
$405,000, or $0.01 per share. On April 28, 1998, the Company declared a cash
dividend of $0.0125 per share, payable on May 29, 1998, to shareholders of
record on May 15, 1998.
On January 9, 1998, the Company's Board of Directors approved the purchase of up
to two million additional shares of its common stock. As of March 29, 1998 the
Company had purchased 10,000 shares pursuant to this approval. As of May 11,
1998, the Company had purchased a total of 1,888,600 of the approved shares.
NOTE 6 - SUPPLEMENTAL CASH FLOW INFORMATION
For the quarters ended March 29, 1998 and March 30, 1997, the following
supplements the consolidated statements of cash flows (amounts in thousands):
1998 1997
- --------------------------------------------------------------------------------
Interest paid $ 4,388 675
- --------------------------------------------------------------------------------
Distributions paid on preferred securities $ 2,012 -
- --------------------------------------------------------------------------------
Income taxes paid $ 2,254 3,907
- --------------------------------------------------------------------------------
Business acquisitions, net of cash acquired:
Fair value of assets acquired, other than cash $ - 47,166
Liabilities assumed - (22,379)
Merger consideration payable - (1,891)
Stock issued - (16,335)
Purchase price in excess of the net assets acquired - 99,679
- --------------------------------------------------------------------------------
Net cash used for acquisitions $ - 106,240
================================================================================
As discussed in Note 2, the Company received proceeds from the sale of 33
Applebee's restaurants subsequent to March 29, 1998. As such, the divestiture
transaction had no effect on consolidated cash flows for the quarter ended March
29, 1998. The accompanying consolidated balance sheet, however, reflects changes
in asset and liability accounts related to the divestiture as follows: decrease
in assets held for sale of $38.6 million, decreases in assets not classified as
held for sale of $4.4 million and increases in accrued liabilities of $2.7
million.
Page 8
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NOTE 7 - INCOME TAXES
The effective tax rate for the first quarter of 1998 was 37.2% reflecting the
blend of taxes on continuing operations estimated at 34.0% and taxes on the gain
on sale of assets estimated at 38.0%. The Company's effective tax rate on
continuing operations for fiscal 1998 is expected to be 34.0% compared to the
prior year effective rate of 32.4%. The increase in effective rate is due to a
projected increase in taxable income for fiscal 1998.
NOTE 8 - CONTINGENCIES
During 1997, two lawsuits were filed by persons seeking to represent a class of
shareholders of the Company who purchased shares of the Company's common stock
between May 26, 1995 and September 24, 1996. Each plaintiff named the Company
and certain of its officers and directors as defendants. The complaints alleged
acts of fraudulent misrepresentation by the defendants which induced the
plaintiffs to purchase the Company's common stock and alleged illegal insider
trading by certain of the defendants, each of which allegedly resulted in losses
to the plaintiffs and similarly situated shareholders of the Company. The
complaints each seek damages and other relief. Although the ultimate outcome of
these lawsuits cannot be determined at this time, the Company believes that the
allegations therein are without merit and intends to vigorously defend itself.
NOTE 9 - COMPREHENSIVE INCOME
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income". SFAS 130, which is effective for the Company's fiscal 1998, established
standards for reporting and display of comprehensive income and its components.
Comprehensive income is defined as the change in equity of a business enterprise
during a period from transactions and other events and circumstances from
nonowner sources. Total comprehensive income for the quarter ended March 29,
1998 of $37.2 million included net earnings as reported in the accompanying
consolidated statement of earnings plus the $0.1 million after-tax effect of
foreign currency translation adjustments. Comprehensive income for the quarter
ended March 30, 1997 was equal to net earnings as reported.
Page 9
<PAGE>
Item 2.
APPLE SOUTH, INC.
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
March 29, 1998
Consolidated Overview
Consolidated restaurant sales for the first quarter of 1998 increased 41% to
$241.7 million from $171.5 million for the same period in 1997. The sales
increase is primarily due to a full quarter of sales from the three divisions
(Hops, McCormick & Schmick's and Canyon Cafes) acquired during 1997 in addition
to a 48% increase in operating weeks in the Don Pablo's division attributable to
new unit openings. Net earnings for the quarter were $37.1 million compared to
$7.3 million for the first quarter of 1997 and included a $49.0 million pre-tax
($30.4 million after-tax) gain on the sale of 33 of the Company's franchised
Applebee's Neighborhood Grill & Bar ("Applebee's") restaurants. Net earnings for
the quarter also included a one-time, after-tax charge of $1.5 million related
to the adoption of a change in accounting principle requiring the expensing of
preopening costs as incurred in accordance with AICPA Statement of Position
98-5, "Reporting the Cost of Start-Up Activities." The Company had previously
expensed these costs in the first full month of a restaurant's operations.
During January 1998, the Company acquired a 20% interest in Belgo Group, PLC
("Belgo"), a public restaurant company based in the United Kingdom, for $6.1
million. During April 1998, the Company sold its Harrigan's division, retaining
a 25% equity interest in the ongoing business. The Company's pro rata share of
net earnings of Belgo and Harrigan's is included in "Income from investments
carried at equity" in the accompanying consolidated statement of earnings.
Interest expense for the quarter ended March 29, 1998 increased to $7.1 million
compared to $3.9 million for the same period in 1997 due to the net effect of
higher average borrowings as a result of Company expansion and the gain realized
on the termination of an interest rate contract.
Distributions on preferred securities increased to $2.0 million from $0.4
million for the same period in 1997 due to a full quarter of distributions
related to the Company's $115.0 million, 7.0% convertible preferred securities
issued during March 1997 to finance acquisitions.
"Other, primarily goodwill amortization" increased to $1.3 million from $0.7
million for the same period in 1997 due primarily to a full quarter of
intangible amortization related to the 1997 acquisitions.
The effective tax rate for the first quarter of 1998 was 37.2% reflecting the
blend of taxes on continuing operations estimated at 34.0% and taxes on the gain
on sale of assets estimated at 38.0%. The Company's effective tax rate on
continuing operations for the full year 1998 is expected to be 34.0% compared to
the prior year effective rate of 32.4%. The increase in effective rate is due to
a projected increase in taxable income for fiscal 1998.
Page 10
<PAGE>
Core Brands
The following table presents operating income for the Company's ongoing "Core"
brands which include Don Pablo's, Hops, McCormick & Schmick's and Canyon Cafes.
The first quarter of 1997 included only one month of operations related to Hops
and McCormick & Schmick's and no operations related to Canyon Cafes. As such,
the table presents the actual quarter ended March 29, 1998 compared to the pro
forma results for the quarter ended March 30, 1997 (assuming the three
acquisitions occurred as of the beginning of 1997).
Actual Pro forma
March 29, March 30,
For the quarters ended 1998 1997
- --------------------------------------------------------------------------------
Restaurant sales:
Don Pablo's $ 59,263 40,402
Hops 23,327 12,569
McCormick & Schmick's 21,342 18,469
Canyon Cafes 11,981 6,992
- --------------------------------------------------------------------------------
Total restaurant sales 115,913 78,432
- --------------------------------------------------------------------------------
Restaurant operating expenses:
Food and beverage 32,578 22,080
Payroll and benefits 35,096 23,810
Depreciation and amortization 4,204 2,846
Other operating expenses 26,631 18,043
- --------------------------------------------------------------------------------
Total restaurant operating expenses 98,509 66,779
- --------------------------------------------------------------------------------
Income from restaurant operations 17,404 11,653
15.0% 14.9%
General and administrative expenses 8,961 6,150
- --------------------------------------------------------------------------------
Operating income $ 8,443 5,503
================================================================================
7.3% 7.0%
Total restaurant sales and operating income for the core divisions increased by
48% and 53%, respectively, over the pro forma results of the comparable prior
year period. The sales increase is a result of a combined core brand increase in
operating weeks of 48% in addition to increases in average weekly sales of 8% in
the Hops division and 4% in both the McCormick & Schmick's and Canyon Cafes
divisions. Average weekly sales in the Don Pablo's division were slightly
negative (less than 1%). The sales decreases at Don Pablo's were a result of
1997 new restaurant openings which were predominantly located in new markets.
Restaurants in new markets often experience lower average unit volumes in the
initial post-opening period compared to new units in established markets where
brand recognition has already been established. Average weekly sales in Don
Pablo's base restaurants (those open for a full 12 months at the beginning of
1998) were 3% positive for the first quarter of 1998, reflecting the concept's
increased recognition in existing markets achieved through a combination of
market penetration and television advertising. Management believes that the
sales increases in the other core brands are attributable to the Company's
expanding market share, increased concept recognition and a consumer focus which
allows a high level of execution against customer expectations.
Page 11
<PAGE>
Restaurant operating expenses of 85.0% of sales were consistent with the prior
year's 85.1%. General and administrative expenses, which include divisional and
all corporate overhead, decreased from 7.8% to 7.7% primarily as a result of
leverage gained from absolute increases in size.
Applebee's Divestiture
On March 29, 1998, the Company completed the sale of 33 of its franchised
Applebee's restaurants. Total proceeds from the sale were $94.7 million in cash,
reflecting $93.4 million for 32 restaurants, as originally disclosed in a Form
8-K filed by the Company on January 15, 1998, plus $1.3 million for one
additional restaurant and other routine closing adjustments. The Company
recorded a pre-tax gain on the sale of $49.0 million ($30.4 million after-tax).
Proceeds from the transaction, which closed as of the close of business on
Sunday, March 29, 1998, were received by the Company on Monday, March 30, 1998,
and as such, $94.7 million is reflected on the accompanying consolidated balance
sheet as "Proceeds due from sale of assets".
Applebee's sales for the quarter ended March 29, 1998 increased by 12.5% over
the comparable prior year period due primarily to an increase in operating
weeks. Earnings before interest, taxes, depreciation and amortization, prior to
accruals related to pay-to-stay bonuses, increased by 10.0% over the comparable
prior year period. Based on Applebee's operating performance during the first
quarter, the Company continues to expect net proceeds, after selling expenses
and income taxes, to approximate $400 million. The Company has signed a
definitive purchase contract for the sale of 26 restaurants in Mississippi and
East Tennessee, which is expected to close in the second quarter. As of May 11,
1998, the Company also has five additional definitive purchase contracts for 77
restaurants, four letters of intent for the purchase of 44 restaurants, and has
written offers for the remaining 86 restaurants.
Liquidity and Capital Resources
The principal uses of funds during the quarter ended March 29, 1998 were capital
expenditures and the Company's $6.1 million investment in Belgo. Capital
expenditures were $40.1 million compared to $26.4 million for the same period of
1997. These expenditures, which include purchases of land for new restaurants,
new restaurant construction, and purchases of new and replacement furniture and
equipment, are expected to approximate $90 million to $100 million for the
remainder of fiscal 1998 and $195 million to $210 million for fiscal 1999. A
portion of these capital requirements will be funded with cash proceeds from the
divestiture of the Applebee's division, cash generated from operations and
remaining commitments of $20.0 million under a master equipment lease.
Additionally, at March 29, 1998 the Company had available unsecured revolving
bank credit agreements aggregating $300.0 million of which $12.0 million was
unused and available.
Subsequent to March 29, 1998, the Company used proceeds from the completed
Applebee's sale transaction to pay-down revolving debt. The Company reduced its
obligation under a fully utilized $200.0 million credit facility by $67.0
million. Under the terms of the $200.0 million agreement, credit availability
declines commensurate with reductions in the outstanding obligation. As a result
of this decrease in credit availability, the Company has executed a new $100.0
million revolving credit facility, thereby increasing aggregate revolving credit
availability to $333.0 million of which $30.0 million was unused and available
at May 11, 1998. The remaining proceeds from the Applebee's sale were used to
pay down the Company's remaining credit facilities and purchase certain property
and equipment.
Page 12
<PAGE>
Management expects to continue the reduction of revolving debt obligations and
believes that cash flow from operations and proceeds from sales of the remaining
Applebee's restaurants will generate a cash balance of approximately $30 million
to $40 million by the end of fiscal 1998. The Company does not anticipate
reducing its outstanding obligation related to the $125.0 million senior notes
issued in 1996.
Forward-Looking Information
Certain information contained in this Form 10-Q, particularly information
regarding the timing and sales price of the disposition of Applebee's
restaurants, future economic performance and finances, restaurant development
plans, capital requirements and objectives of management, is forward looking. In
some cases, information regarding certain important factors that could cause
actual results to differ materially from any such forward-looking statement
appear together with such statement. In addition, the following factors, in
addition to other possible factors not listed, could affect the Company's actual
results and cause such results to differ materially from those expressed in
forward-looking statements. These factors include competition within the casual
dining restaurant industry, which remains intense; changes in economic
conditions such as inflation or a recession; consumer perceptions of food
safety; weather conditions; changes in consumer tastes; labor and benefit costs;
legal claims; the continued ability of the Company to obtain suitable locations
and financing for new restaurant development; government monetary and fiscal
policies; laws and regulations; governmental initiatives such as minimum wage
rates and taxes; retention of Applebee's division employees while sales are
pending; the availability of qualified buyers for the Applebee's restaurants and
their ability to obtain required financing; and the satisfaction of closing
conditions for prospective transactions subject to outstanding contracts or
letters of intent. Other factors that may cause actual results to differ from
the forward-looking statements contained in this release and that may affect the
Company's prospects in general are described in Exhibit 99.1 to the Company's
Form 10-Q for the fiscal quarter ended June 29, 1997, and the Company's other
filings with the Securities and Exchange Commission.
New Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 130, "Reporting Comprehensive
Income". SFAS 130, which is effective for the Company's fiscal 1998, established
standards for reporting and display of comprehensive income and its components.
Comprehensive income is defined as the change in equity of a business enterprise
during a period from transactions and other events and circumstances from
nonowner sources. Total comprehensive income for the quarter ended March 29,
1998 of $37.2 million included net earnings as reported in the accompanying
consolidated statement of earnings plus the $0.1 million after-tax effect of
foreign currency translation adjustments. Comprehensive income for the quarter
ended March 30, 1997 was equal to net earnings as reported.
Page 13
<PAGE>
Part II. Other Information
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits.
10.1 $100 million Credit Agreement, dated April 1, 1998, among
Apple South, Inc., Wachovia Bank, National Association, as
agent for the banks, and the banks listed as parties thereto.
10.2 First amendment, dated as of March 27, 1998, to Participation
Agreement (Apple South Trust No. 97-1), dated as of September
24, 1997, among Apple South, Inc., as lessee, First Security
Bank, National Association, as lessor, SunTrust Bank, Atlanta,
as administrative agent, and the holders and lenders signatory
thereto.
11.1 Computation of earnings per common share
27.1 Financial Data Schedule (EDGAR version only)
99.1 Safe Harbor Under the Private Securities Litigation Reform Act
of 1995*
*Incorporated by reference to the corresponding
exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended June 29, 1997, as
amended by a Form 10-Q/A filed on August 27, 1997
(b) Reports on Form 8-K.
The Company filed a Current Report on Form 8-K, dated January 15, 1998,
which disclosed, pursuant to Item 5 of Form 8-K, the Company's
intentions to sell its franchised Applebee's Neighborhood Grill & Bar
restaurants.
The Company filed a Current Report on Form 8-K, dated March 29, 1998,
which disclosed, pursuant to Item 2 of Form 8-K, the Company's
completion of the sale of 33 of its franchised Applebee's Neighborhood
Grill & Bar restaurants.
Page 14
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Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Apple South, Inc.
(Registrant)
Date: May 12, 1998 By: /s/ Erich J. Booth
------------------------
Erich J. Booth
Chief Financial Officer
and Treasurer
/s/ Philip L. Ammons
------------------------
Philip L. Ammons
Chief Accounting Officer
Page 15
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EXHIBIT INDEX
10.1 $100 million Credit Agreement, dated April 1, 1998, among
Apple South, Inc., Wachovia Bank, National Association, as
agent for the banks, and the banks listed as parties thereto.
10.2 First amendment, dated as of March 27, 1998, to Participation
Agreement (Apple South Trust No. 97-1), dated as of September
24, 1997, among Apple South, Inc., as lessee, First Security
Bank, National Association, as lessor, SunTrust Bank, Atlanta,
as administrative agent, and the holders and lenders signatory
thereto.
11.1 Computation of earnings per common share
27.1 Financial Data Schedule (EDGAR version only)
99.1 Safe Harbor Under the Private Securities Litigation Reform Act
of 1995*
*Incorporated by reference to the corresponding
exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended June 29, 1997, as
amended by a Form 10-Q/A filed on August 27, 1997
Page 16
$100,000,000
CREDIT AGREEMENT
DATED AS OF
APRIL 1, 1998
AMONG
APPLE SOUTH, INC.,
AS BORROWER
WACHOVIA BANK, NATIONAL ASSOCIATION
AND
ANY OTHER BANK OR BANKS LISTED ON THE
SIGNATURE PAGE(S) HEREOF,
AS BANKS
AND
WACHOVIA BANK, NATIONAL ASSOCIATION
AS AGENT FOR THE BANKS
<PAGE>
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS........................................................1
SECTION 1.1. Definitions.............................................1
SECTION 1.2. Accounting Terms and Determinations....................13
SECTION 1.3. References.............................................13
SECTION 1.4. Use of Defined Terms...................................14
SECTION 1.5. Terminology............................................14
ARTICLE 2. THE CREDIT........................................................14
SECTION 2.1. Commitments to Lend....................................14
SECTION 2.2. Method of Borrowing....................................14
SECTION 2.3. Notes..................................................16
SECTION 2.4. Maturity of Revolving Loans............................17
SECTION 2.5. Interest Rates.........................................17
SECTION 2.6. Fees...................................................18
SECTION 2.7. Termination or Reduction of Commitments................18
SECTION 2.8. Optional Prepayments...................................19
SECTION 2.9. Mandatory Prepayments..................................19
SECTION 2.10. General Provisions as to Payments.....................19
SECTION 2.11. Computation of Interest and Fees. ....................20
ARTICLE 3. CONDITIONS TO BORROWINGS..........................................20
SECTION 3.1. Conditions to First Borrowing..........................20
SECTION 3.2. Conditions to All Borrowings...........................21
ARTICLE 4. REPRESENTATIONS AND WARRANTIES....................................21
SECTION 4.1. Corporate Existence and Power..........................21
SECTION 4.2. Corporate and Governmental Authorization; No
Contravention........................................22
SECTION 4.3. Binding Effect.........................................22
SECTION 4.4. Financial Information; No Material Adverse Effect......22
SECTION 4.5. No Litigation..........................................23
SECTION 4.6. Compliance with Laws Generally; Compliance with ERISA..23
SECTION 4.7. Taxes..................................................23
SECTION 4.8. Subsidiaries...........................................23
SECTION 4.9. Not a Public Utility, Holding Company, Investment
Company or Investment Adviser........................23
SECTION 4.10. Ownership of Property; Liens..........................24
SECTION 4.11. No Default............................................24
SECTION 4.12. Full Disclosure.......................................24
SECTION 4.13. Environmental Matters.................................24
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SECTION 4.14. Capital Stock.........................................25
SECTION 4.15. Margin Stock..........................................25
SECTION 4.16. Solvency..............................................25
SECTION 4.17. Possession of Franchises, Licenses, Etc...............25
SECTION 4.18. Insurance.............................................26
ARTICLE 5. COVENANTS.........................................................26
SECTION 5.1. Information............................................26
SECTION 5.2. Inspection of Property, Books and Records..............27
SECTION 5.3. Adjusted Funded Debt/Adjusted Capitalization Ratio.....28
SECTION 5.4. Minimum Stockholders' Equity. ........................28
SECTION 5.5. Fixed Charge Coverage Ratio............................28
SECTION 5.6. Total Funded Debt/EBITDA Ratio.........................28
SECTION 5.7. Negative Pledge........................................29
SECTION 5.8. Maintenance of Existence...............................30
SECTION 5.9. Dissolution............................................30
SECTION 5.10. Consolidations, Mergers and Sales of Assets...........30
SECTION 5.11. Use of Proceeds.......................................30
SECTION 5.12. Compliance with Laws; Payment of Taxes................31
SECTION 5.13. Insurance.............................................31
SECTION 5.14. Change in Fiscal Year.................................31
SECTION 5.15. Maintenance of Property...............................31
SECTION 5.16. Environmental Notices.................................31
SECTION 5.17. Environmental Matters.................................32
SECTION 5.18. Environmental Releases................................32
SECTION 5.19. Investments...........................................32
SECTION 5.20. Subsidiary Debt.......................................34
ARTICLE 6. DEFAULTS..........................................................35
SECTION 6.1. Events of Default......................................35
SECTION 6.2. Notice of Default......................................38
ARTICLE 7. THE AGENT.........................................................38
SECTION 7.1. Appointment; Powers and Immunities.....................38
SECTION 7.2. Reliance by Agent......................................39
SECTION 7.3. Defaults...............................................39
SECTION 7.4. Rights of Agent as a Bank..............................39
SECTION 7.5. Indemnification........................................40
SECTION 7.6. Payee of Note Treated as Owner.........................40
SECTION 7.7. Nonreliance on Agent and Other Banks...................40
SECTION 7.8. Failure to Act.........................................41
SECTION 7.9. Resignation of Agent...................................41
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ARTICLE 8. CHANGE IN CIRCUMSTANCES; COMPENSATION.............................41
SECTION 8.1. Basis for Determining Interest Rate Inadequate
or Unfair......................................................41
SECTION 8.2. Illegality.............................................42
SECTION 8.3. Increased Cost and Reduced Return......................42
SECTION 8.4. Base Rate Loans Substituted for Affected Euro-Dollar
Rate Loans.....................................................43
SECTION 8.5. Replacement of a Lender................................44
SECTION 8.6. Compensation...........................................44
ARTICLE 9. MISCELLANEOUS.....................................................45
SECTION 9.1. Notices................................................45
SECTION 9.2. No Waivers.............................................45
SECTION 9.3. Expenses; Documentary Taxes............................45
SECTION 9.4. Indemnification........................................46
SECTION 9.5. Sharing of Setoffs.....................................46
SECTION 9.6. Amendments and Waivers.................................47
SECTION 9.7. No Margin Stock Collateral.............................47
SECTION 9.8. Successors and Assigns.................................47
SECTION 9.9. Confidentiality........................................49
SECTION 9.10. Representation by Banks...............................50
SECTION 9.11. Obligations Several...................................50
SECTION 9.12. GEORGIA LAW...........................................50
SECTION 9.13. Interpretation........................................50
SECTION 9.14. CONSENT TO JURISDICTION...............................51
SECTION 9.15. Counterparts..........................................51
SECTION 9.16. Survival..............................................51
SECTION 9.17. Entire Agreement; Amendment; Severability.............51
SECTION 9.18. TIME OF THE ESSENCE...................................51
SECTION 9.19. Banks Not a Joint Venturer............................52
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EXHIBITS
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B Form of Revolving Loan Note
EXHIBIT C Form of Notice of Borrowing
EXHIBIT D Form of Opinion of Counsel for Borrower
EXHIBIT E Form of Closing Certificate
EXHIBIT F Form of Secretary's Certificate
EXHIBIT G Form of Compliance Certificate
SCHEDULES
SCHEDULE 4.8 Existing Subsidiaries
SCHEDULE 5.7 Existing Permitted Liens
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 1, 1998 , is made
among APPLE SOUTH, INC., as Borrower; WACHOVIA BANK, NATIONAL ASSOCIATION and
any other party or parties listed as a "Bank" or the "Banks" on the signature
page(s) hereof, as Banks; and WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent for
the Banks.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
SECTION 1.1. Definitions.
The terms as defined in this Section 1.1 shall for all purposes of this
Agreement and any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the meanings set forth
herein:
"Adjusted Capitalization" shall be equal to the sum at any date of: (i)
Adjusted Funded Debt; plus (ii) Stockholders' Equity.
"Adjusted Funded Debt" shall mean and include the sum (without duplication)
of the following, at any date, for the Borrower and its Consolidated
Subsidiaries on a consolidated basis: (i) Total Funded Debt; plus (ii) the
present value (discounted at ten percent (10%) per annum) of the minimum amount
of noncancellable operating lease payments owing by Borrower and such
Subsidiaries at such date (excluding, however, for this purpose, any such lease
payments owing under the DR Holdings Lease); plus (iii) the present value
(discounted at ten percent (10%) per annum) of the total payments of "Rent"
owing by the Borrower under the DR Holdings Lease for the entire remaining
"Lease Term" (inclusive of the original term and all renewal terms, whether or
not then effective), with the terms "Rent" and "Lease Term" as used hereinabove
having the meanings given to such terms in the DR Holdings Lease; plus (iv) all
Redeemable Preferred Stock.
"Adjusted Funded Debt/Adjusted Capitalization Ratio" shall mean the ratio
which (i) the Adjusted Funded Debt of the Borrower and its Consolidated
Subsidiaries at any date bears to (ii) the Adjusted Capitalization of the
Borrower and its Consolidated Subsidiaries at such date.
"Adjusted LIBOR Rate," applicable to any Interest Period, means that
interest rate per annum determined by the Agent to be equal to the quotient
obtained (rounded upwards, if necessary, to the next higher 1/100th of 1%) by
dividing (i) the applicable LIBOR Rate for such Interest Period by (ii) 1.00
minus the then applicable Euro-Dollar Reserve Percentage (if any).
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"Affiliate" means, as to any Person (i) any other Person that directly, or
indirectly through one or more intermediaries, controls such Person (a
"Controlling Person"), (ii) any other Person which is controlled by or is under
common control with such Person or a Controlling Person, or (iii) any other
Person of which such Person owns, directly or indirectly, twenty percent (20%)
or more of the common stock or equivalent equity interests. As used herein, the
term "control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank, National Association, a national banking
association organized under the laws of the United States of America, in its
capacity as agent for the Banks hereunder, and its successors and permitted
assigns in such capacity.
"Agent's Address" means the address of Agent referred to or specified in
Section 9.1.
"Agreement" means this Credit Agreement, together with all amendments and
modifications hereto.
"Announcement Date" shall mean that date on which the Borrower announces
publicly, such as by issuance of a press release, that it has entered into a
letter of intent, agreement in principle or similar arrangement with Applebee's
International, Inc. and one or more other franchisees designated by it in
respect of the Applebee's Spinoff.
"Applebee's Spinoff" shall mean any sale or other disposition by the
Borrower of any of its Applebee's Neighborhood Grill & Bar restaurants to
Applebee's International, Inc. or to other third parties, all of which sales in
the aggregate shall result in the sale or other disposition by Borrower of all,
or substantially all, of the Applebee's Neighborhood Grill & Bar restaurants
owned by Borrower for an aggregate amount of not less than Three Hundred Fifty
Million Dollars ($350,000,000), of which not less than Three Hundred Forty
Million Dollars ($340,000) shall be paid in cash, and not more than Ten Million
Dollars ($10,000,000) may be paid by issuance of purchase money debt to the
Borrower, each payment of which shall be made in full upon the closing of the
final sale for such respective transaction, by the payment of cash or the
issuance of purchase money debt, or by some combination thereof, subject to the
foregoing limitations, with all such sales to occur as soon as practicable, but
in any event on or before April 1, 1999.
"Applicable Margin" means: (i) for any Base Rate Loan, zero percent (0%);
and (ii) for any Euro-Dollar Rate Loan, one and one-half of one percent (1-1/2%)
per annum.
"Assignee" has the meaning set forth in Section 9.8.3.
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.8.3 in the form attached hereto as Exhibit A.
"Authority" has the meaning set forth in Section 8.2.
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"Bank" means each bank or other financial institution listed on the
signature pages hereof and identified therein as a "Bank."
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, and (ii) one-half of
one percent (1/2%) per annum above the Federal Funds Rate. For purposes of
determining the Base Rate for any day, changes in the Prime Rate or the Federal
Funds Rate, as the case may be, shall be effective on the date of each such
change.
"Base Rate Loan" means a Revolving Loan made at the Base Rate pursuant to
Section 2.1.
"Borrower" means Apple South, Inc., a Georgia corporation, and its
successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Revolving Loans made
to the Borrower at the same time by the Banks pursuant to Article II. A
Borrowing is a "Base Rate Borrowing" if such Revolving Loans are Base Rate Loans
or a "Euro-Dollar Rate Borrowing" if such Revolving Loans are Euro-Dollar Rate
Loans.
"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Capitalized Lease Obligations" shall mean those liabilities of the
Borrower and its Consolidated Subsidiaries under any leases that are required to
be capitalized for financial reporting purposes in accordance with GAAP, and the
amount of such liabilities shall be the capitalized amount of such liabilities
as determined in accordance with GAAP.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. ss. 9601 et seq. and its implementing regulations and
amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in Section 8.2.
"Closing Certificate" has the meaning set forth in Section 3.1.4.
"Closing Date" means the date of this Agreement, as first inscribed
hereinabove.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
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"Commitment" means (i) the amount indicated beneath each Bank's signature
hereinbelow as its "Commitment Amount," as to each Bank, and (ii) One Hundred
Million Dollars ($100,000,000), in the aggregate, as to all Banks; as each such
amount may be reduced from time to time pursuant to Section 2.7 or Section 8.5.
"Compliance Certificate" has the meaning set forth in Section 5.1.3.
"Consolidated Net Income," for any period, means the net income of the
Borrower and its Consolidated Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP, excluding, however, (i) any
extraordinary items and (ii) any equity interest of the Borrower or any
Consolidated Subsidiary in the unremitted earnings of any Person which is not a
Subsidiary, in each case as likewise determined on a consolidated basis in
accordance with GAAP.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be consolidated with those
of the Borrower in its consolidated financial statements as of such date.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured and waived, become an Event of Default.
"Default Rate" means, with respect to any Revolving Loan, on any day, the
sum of two percent (2%) per annum in excess of the interest rate otherwise then
or thereafter payable on such Revolving Loan, but, in any event, not less than
two percent (2%) per annum in excess of the Base Rate.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks are not required to be open for business in the
State of Georgia.
"DR Holdings Lease" shall mean the Lease and Development Agreement, dated
as of March 2, 1995, between DR Holdings, L.P., as lessor, and the Borrower, as
lessee, together with Appendix "A" thereto and each "Lease Supplement" thereto
(as defined therein), all "Operative Documents" (as also defined therein) and
all amendments and modifications thereto made from time to time hereafter.
"EBITDA" shall mean, for any fiscal period of the Borrower and its
Consolidated Subsidiaries, that amount equal to the sum, determined in
accordance with GAAP, of the Consoli dated Net Income of the Borrower and its
Consolidated Subsidiaries for such period (considered without regard to any
extraordinary gains or losses), plus, without duplication, and to the extent
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deducted from revenue in determining Consolidated Net Income, depreciation and
amortization expense and any other non-cash charges for such period, interest
expense for such period, and taxes for such period.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Subsidiary required by any Environmental
Requirement.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or orders
arising from or in any way associated with any Environmental Requirements,
whether or not entered upon consent or pursuant to written agreements with an
Environmental Authority or any other entity, arising from or in any way
associated with any Environmental Requirement, whether or not incorporated in a
judgment, decree or order.
"Environmental Liabilities" means any liabilities whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority or by
any other Person, of possible or alleged noncompliance with or liability under
any Environmental Requirement, including, without limitation any complaints,
citations, demands or requests from any Environmental Authority or from any
other Person for correction of any violation of any Environmental Requirement or
any investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means "releases" as defined in CERCLA or under any
applicable state or local environmental law or regulation.
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Subsidiary
or any Property, including, but not limited to, any such requirement under
CERCLA or similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
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"Euro-Dollar Business Day" means any Domestic Business Day in which
dealings in Dollar deposits are carried out in the London interbank Euro-Dollar
market.
"Euro-Dollar Rate," applicable to any Interest Period, means that interest
rate per annum equal to the sum of (i) the Adjusted LIBOR Rate for such Interest
Period, plus (ii) the Applicable Margin.
"Euro-Dollar Rate Loan" means a Revolving Loan made at the Euro-Dollar Rate
pursuant to Section 2.1.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Rate Loans is determined or any category of
extensions of credit or other assets which includes loans by a non-United States
office of any Bank to United States residents). The Adjusted LIBOR Rate shall be
adjusted automatically on and as of the effective date of any change in the
Euro-Dollar Reserve Percentage.
"Event of Default" has the meaning set forth in Section 6.1.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent on such day on such
transactions, as determined by the Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fixed Charge Coverage Ratio" shall mean, for any fiscal period, the ratio
which (A) the sum of: (i) Consolidated Net Income for such period; plus (ii) the
sum (without duplication) of (a) interest expense for such period, (b) any
dividends paid in respect of Redeemable Preferred Stock during such period, and
(c) any payments made (howsoever denominated or construed) in respect of any tax
deductible, convertible preferred stock ("TECONS") or similar tax-advantaged
investment vehicles, regardless of maturity or the timing of any redemption or
repurchase rights granted in regard
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thereto (the sum of (a), (b) and (c) above being called, collectively,
"Investment Costs"); plus (iii) any provision for taxes and operating lease
expense; in each case, for the Borrower and its Consolidated Subsidiaries for
such period; bears to (B) the sum (without duplication) of: (i) all Investment
Costs; plus (ii) operating lease expense; in each case, for the Borrower and its
Consolidated Subsidiaries for the same such period; all as determined under
GAAP.
"Franchise Rights" shall mean all rights, privileges and interests of the
Borrower and its Consolidated Subsidiaries to own, operate and develop
franchised restaurants as a franchisee, whether now or hereafter existing, and
whether with respect to the operation of any "Applebee's" restaurants or
otherwise.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.2, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Guarantee" or "Guaranty" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such debt or other obligation (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The terms "Guarantee" or "Guaranty" used as a verb has a
corresponding meaning.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. ss. 6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) "hazardous substance,"
"pollutant," or "contaminant" as defined in CERCLA, or in applicable state or
local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including, crude oil or any fraction thereof, (d) "toxic
substances", as defined in the Toxic Substances Control Act of 1976, or in any
applicable state or local law or regulation, and (e) insecticides, fungicides,
or rodenticides, as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act of 1975, or in any applicable state or local law or regulation,
as each such Act, statute or regulation may be amended from time to time.
"Interest Period" means:
(1) with respect to each Euro-Dollar Rate Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding date
in the first, second, third or
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sixth calendar month thereafter, as the Borrower may elect in the applicable
Notice of Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined pursuant
to paragraph (c) below) which would otherwise end on a day which is not a
Euro-Dollar Business Day shall be extended to the next succeeding Euro-Dollar
Business Day unless such Euro-Dollar Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall, subject to paragraph
(c) below, end on the last Euro-Dollar Business Day of the appropriate
subsequent calendar month; and
(c) any Interest Period which begins before the Termination Date and would
otherwise end after the Termination Date shall end on the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the
date of such Borrowing and ending on the date on which such Base Rate Borrowing
is fully paid or converted to a Euro-Dollar Rate Borrowing; provided that:
(a) any Interest Period (other than an Interest Period determined pursuant
to paragraph (b) below) which would otherwise end on a day which is not a
Domestic Business Day shall be extended to the next succeeding Domestic Business
Day;
(b) any Interest Period which begins before the Termination Date and would
otherwise end after the Termination Date shall end on the Termination Date.
"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office in the United States as such
Bank may hereafter designate as its Lending Office by notice to the Borrower and
the Agent.
"LIBOR Rate" means, for any Euro-Dollar Rate Loan for the Interest Period
of such Euro-Dollar Rate Loan, the rate per annum determined by the Agent on the
basis of the offered rate for deposits in Dollars of amounts equal or comparable
to the principal amount of such Euro-Dollar Rate Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London interbank
offered rates for U.S. dollar deposits), determined as of 11:00 A.M., London
time, two (2) Euro-Dollar Business Days prior to the first day of such Interest
Period, provided that (i) if more than one such offered rate appears on such
page, the "LIBOR Rate" will be the arithmetic average (rounded upward, if
necessary, to the next higher
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1/100th of 1%) of such offered rates; (ii) if no such offered rates appear on
such page, the "LIBOR Rate" for such Interest Period will be the arithmetic
average (rounded upward, if necessary, to the next higher 1/100th of 1%) of
rates quoted by not less than two (2) major banks in New York City, selected by
the Agent, at approximately 10:00 A.M., New York City time, two (2) Euro-Dollar
Business Days prior to the first day of such Interest Period, for deposits in
Dollars offered to leading European banks for a period comparable to such
Interest Period in an amount comparable to the principal amount of such
Euro-Dollar Loan.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title or other,
preferential arrangement, which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law. For
purposes of this Agreement, the Borrower or any Subsidiary shall be deemed to
own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing or relating to the Revolving Loans, and any other document,
instrument, certificate or agreement delivered in connection with this
Agreement, the Notes or the Revolving Loans, as such documents, instruments,
certificates and agreements may be amended or modified from time to time.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U or X.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, that such
event or events, act or acts, condition or conditions, and/or occurrence or
occurrences results in a material adverse change in, or has a material adverse
effect upon, any of (a) the financial condition, operations, business, or
properties of Borrower and its Consolidated Subsidiaries taken as a whole, (b)
the rights and remedies of the Agent or the Banks under the Loan Documents, or
the ability of the Borrower to perform its obligations under the Loan Documents
to which it is a party, as applicable, or (c) the legality, validity or
enforceability of this Agreement, any Note or any Loan Document.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Net Cash Proceeds" shall mean, the total cash proceeds received by the
Borrower from any Applebee's Spinoff, less (i) provisions for all taxes actually
paid or payable as a result thereof, (ii) any direct costs incurred by Borrower
or any Subsidiary associated therewith, (iii) any payments (including
prepayments of rent and termination charges) required to be made in such event
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under the DR Holdings Lease and (iv) any payments made to repay any indebtedness
or other obligation outstanding at the time of an Applebee's Spinoff that is
secured by a Purchase Money Lien on the property or assets sold.
"Notes" means, collectively, the promissory notes of the Borrower
evidencing the Revolving Loans, each to be substantially in the form of Exhibit
B, together with all amendments, consolidations, modifications, renewals, and
supplements thereto.
"Notice of Borrowing" has the meaning set forth in Section 2.2.1.
"Participant" has the meaning set forth in Section 9.8.2.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is them making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates at, above and below the Prime Rate.
"Properties" means all property owned, leased or otherwise used, operated
or occupied by the Borrower or any Subsidiary, wherever located, and whether
real property or personal property.
"Purchase Money Liens" means Liens securing the repayment of any purchase
money debt permitted hereunder incurred to finance the purchase of any Property
hereafter acquired by the Borrower or any Consolidated Subsidiary, so long as
such Liens are limited solely to the Property so acquired, secure only the
purchase money debt so incurred and are terminated upon payment in full of such
purchase money debt.
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"Redeemable Preferred Stock" of any Person means any preferred stock issued
by such Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation G" means Regulation G of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all official
rulings and interpretations issued thereunder.
"Required Banks" means any Bank or Banks having (i) more than fifty percent
(50%) of the aggregate amount of the Commitments or (ii), if the Commitments are
no longer in effect, more than fifty percent (50%) of the aggregate outstanding
principal amount of the Notes.
"Revolving Loan" means, as to any Bank, a Base Rate Loan or a Euro-Dollar
Rate Loan made by such Bank pursuant to Section 2.1.
"Solvent" means as to any Person, that such Person (i) owns Property whose
fair saleable value is greater than the amount required to pay all of such
Person's total debts, direct or indirect, contingent or otherwise, (ii) is able
to pay all of such debts as and when such debts mature and (iii) has capital
sufficient to carry on the business and transactions in which it is engaged and
all business and transactions in which it is about to engage.
"Stockholders' Equity" means, at any time, the stockholders' equity of the
Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' Equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such
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as (A) purchases of treasury stock, (B) valuation allowances, (C) receivables
due from an employee stock ownership plan, and (D) employee stock ownership plan
debt Guarantees.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Synthetic Lease" shall mean any agreement, or series of related
agreements, between the Borrower and one or more other parties which are
intended to be treated, for accounting purposes, as an operating lease with the
Borrower as lessee and, for tax purposes, as a financing arrangement with the
Borrower as debtor.
"Tangible Net Worth" shall mean the difference at any time between (i) the
Stockholders Equity of the Borrower and its Consolidated Subsidiaries at such
time and (ii) the sum of all those assets of the Borrower and its Consolidated
Subsidiaries at such time constituting (A) goodwill, patents, copyrights,
trademarks, trade names and other intangible assets, as determined under GAAP,
plus (B) write-ups of any assets occurring subsequent to December 31, 1996, plus
(C) unamortized debt discount and expense, as determined under GAAP, plus (D)
deferred charges, as determined under GAAP, plus (E) any indebtedness owing to
such Person by any Affiliate of such Person.
"Termination Date" has the meaning set forth in Section 2.7.1.
"Third Parties" means all lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of the Borrower's business and on a temporary basis.
"Total Funded Debt" shall mean that portion of the total liabilities of the
Borrower and its Consolidated Subsidiaries at any date equal to the sum (without
duplication) of: (i) all indebtedness for borrowed money at such date
(including, for this purpose, indebtedness in respect of any outstanding
bankers' acceptances); plus (ii) all Capitalized Lease Obligations outstanding
at such date; plus (iii) all debts, liabilities and obligations which are
Guaranteed by the Borrower or any Consolidated Subsidiary as of such date; plus
(iv) all debts, liabilities or obligations at such date to any seller incurred
to pay the deferred price of property or services having a deferred purchase
price of One Million Dollars ($1,000,000) or more, excepting, in any event,
trade accounts payable arising in the ordinary course of business and purchase
options prior to their exercise; plus (v) all debts, liabilities and obligations
outstanding at such date in respect of any Synthetic Leases, excluding
therefrom, however, any debts, liabilities or obligations under the DR Holdings
Lease up to a maximum thereof of Twenty-Eight Million Dollars ($28,000,000), it
being understood and agreed that, subject to such limitation, no debts,
liabilities or obligations (including any constituting Guaranteed Obligations)
under the DR Holdings Lease shall be included in the definition of Total Funded
Debt.
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"Transferee" has the meaning set forth in Section 9.8.4.
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested nonforfeitable
benefits under such Plan exceeds (ii) the fair market value of all Plan assets
allocable to such benefits, all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents a
potential liability of a member of the Controlled Group to the PBGC or the Plan
under Title IV of ERISA.
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to its Commitment less the aggregate outstanding principal amount of its
Revolving Loans.
"Voluntary Store Closing" shall mean any voluntary closing by the Borrower
or any Subsidiary of any franchised restaurant location in the ordinary course
of its business which does not cause, or result in, the forfeiture, suspension,
loss, rejection, disclaimer, impairment, curtailment, alteration of, or other
adverse effect on, any Franchise Rights with respect to the operation or
development of any other existing or future franchised restaurant location or
locations.
"Wachovia" means Wachovia Bank, National Association, a national banking
association, and its successors.
SECTION 1.2. Accounting Terms and Determinations.
Unless otherwise specified herein, all terms of an accounting character
used herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder shall
be prepared in accordance with GAAP, applied on a basis consistent (except for
changes concurred with by the Borrower's independent public accountants or
otherwise required by a change in GAAP) with the then most recent audited
consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks; provided, however, that upon any change in
GAAP material to Borrower occurring hereafter, the Banks shall have the right to
require either that conforming adjustments be made to any financial covenants
hereafter set forth, or the components thereof, affected by such change or that
the Borrower report its financial condition based on GAAP as in effect
immediately prior to such change occurring.
SECTION 1.3. References.
Unless otherwise indicated, references in this Agreement to "Articles,"
"Exhibits," "Schedules," "Sections" and other Subdivisions are references to
articles, exhibits, schedules, sections and other subdivisions hereof.
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SECTION 1.4. Use of Defined Terms.
All terms defined in this Agreement shall have the same defined meanings
when used in any of the other Loan Documents, unless otherwise defined therein
or unless the context shall require otherwise.
SECTION 1.5. Terminology.
All personal pronouns used in this Agreement, whether used in the
masculine, feminine or neuter gender, shall include all other genders; the
singular shall include the plural, and the plural shall include the singular.
Titles of Articles and Sections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
ARTICLE 2. THE CREDIT
SECTION 2.1. Commitments to Lend.
Each Bank severally agrees, on the terms and conditions set forth herein,
to make Revolving Loans to the Borrower from time to time before the Termination
Date; provided that, immediately after each such Revolving Loan is made, (i) the
aggregate principal amount of Revolving Loans by such Bank shall not exceed the
amount of its Commitment, and (ii) the aggregate principal amount of Revolving
Loans by all Banks shall not exceed One Hundred Million Dollars ($100,000,000).
Each Borrowing under this Section shall be in an aggregate principal amount of
One Million Dollars ($1,000,000) or any larger multiple of Five Hundred Thousand
Dollars ($500,000), in the case of Base Rate Loans, and in an aggregate
principal amount of Two Million Dollars ($2,000,000) or any larger multiple of
One Million Dollars ($1,000,000), in the case of Euro-Dollar Rate Loans (except
that any such Borrowing may be in the aggregate amount of the Unused
Commitments), and shall be made from the several Banks ratably in proportion to
their respective Commitments. Within the foregoing limits, the Borrower may
borrow under this Section, repay or, to the extent permitted by Section 2.8,
prepay Revolving Loans and reborrow under this Section at any time or from time
to time before the Termination Date.
SECTION 2.2. Method of Borrowing.
2.2.1. Notice to Agent. The Borrower shall give the Agent notice (a "Notice
of Borrowing"), which shall be substantially in the form of Exhibit C, not later
than 11:00 a.m. (Atlanta, Georgia time) on the Domestic Business Day of each
Base Rate Borrowing and not later than 11:00 a.m. (Atlanta, Georgia time) at
least three (3) Euro-Dollar Business Days before each Euro-Dollar Borrowing,
specifying:
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(a) the date of such Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar
Business Day in the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
(c) whether the Revolving Loans comprising such Borrowing are
to be Base Rate Loans or Euro-Dollar Rate Loans, and
(d) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period.
2.2.2 Notice to Banks. Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of such Bank's
ratable share of such Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
2.2.3 When Revolving Loans Made. Not later than 1:00 P.M. (Atlanta, Georgia
time) on the date of each Base Rate Borrowing and not later than 11:00 A.M.
(Atlanta, Georgia time) on the date of each Euro-Dollar Borrowing, each Bank
shall (except as provided in Section 2.2.4) make available its ratable share of
such Borrowing, in federal or other funds immediately available in Atlanta,
Georgia, to the Agent at the Agent's address. Unless the Agent determines that
any applicable condition specified in Article 3 has not been satisfied, the
Agent will make the funds so received from the Banks available to the Borrower
at the Agent's Address. Unless the Agent receives notice from a Bank, at the
Agent's Address, no later than 12:00 noon (Atlanta, Georgia time) on the date of
a Base Rate Borrowing and no later than 4:00 P.M. (Atlanta, Georgia time) on the
Domestic Business Day before the date of a Euro-Dollar Rate Borrowing stating
that such Bank will not make a Revolving Loan in connection with such Borrowing,
the Agent shall be entitled to assume that such Bank will make a Revolving Loan
in connection with such Borrowing and, in reliance on such assumption, the Agent
may (but shall not be obligated to) make available such Bank's ratable share of
such Borrowing to the Borrower for the account of such Bank on the date of such
Borrowing. If the Agent makes such Bank's ratable share available to the
Borrower and such Bank does not in fact make its ratable share of such Borrowing
available on such date, the Agent shall be entitled to recover such Bank's
ratable share from such Bank or the Borrower (and for such purpose shall be
entitled to charge such amount to any account of the Borrower maintained with
the Agent), together with interest thereon for each day during the period from
the date of such Borrowing until such sum shall be paid in full at a rate per
annum equal to the rate at which the Agent determines that it obtained (or could
have obtained) overnight Federal funds to cover such amount for each such day
during such period, provided that any such payment by the Borrower of such
Bank's ratable share and interest thereon shall be without prejudice to any
rights that the Borrower may have against such Bank. If the Agent does not
exercise its option to advance funds for the account of such Bank, it shall
forthwith notify the Borrower of such decision.
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2.2.4 Application of Certain Proceeds. If any Bank makes a Revolving Loan
hereunder on a day on which the Borrower is to repay all or any part of an
outstanding Revolving Loan from such Bank, such Bank shall apply the proceeds of
its new Revolving Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Agent as provided in Section
2.2.3, or remitted by the Borrower to the Agent, as the case may be.
2.2.5 No Borrowing Upon Default. Notwithstanding anything to the contrary
contained in this Agreement, no Borrowing may be made if there shall have
occurred a Default, which Default shall not have been cured or waived.
2.2.6 Certain Payments Deemed Made. If the Borrower is otherwise entitled
under this Agreement to repay any Revolving Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Revolving Loans using its own moneys and fails to
give a Notice of Borrowing in connection with such new Borrowing, the Banks, at
their election (and without obligation) may deem that a new Base Rate Borrowing
shall have been made on the date such Revolving Loans mature in an amount equal
to the principal amount of the Revolving Loans so maturing, with an Interest
Period of not greater than one (1) month.
2.2.7 Limitation on Borrowings. Notwithstanding anything to the contrary
contained herein, there shall not be more than six (6) Euro-Dollar Rate
Borrowings outstanding at any given time.
SECTION 2.3. Notes.
2.3.1 Single Notes. The Revolving Loans of each Bank shall be evidenced by
a single Revolving Loan Note payable to the order of such Bank for the account
of its Lending Office in an amount equal to the original principal amount of
such Bank's Commitment.
2.3.2 Endorsements to Notes. Upon receipt of each Bank's Note pursuant to
Section 3.1.2, the Agent shall deliver such Note to such Bank. Each Bank may
record and, prior to any transfer of its Note shall, endorse on the schedule
forming a part thereof appropriate notations to evidence the date, amount and
maturity of each Revolving Loan made by it, the date and amount of each payment
of principal made by the Borrower with respect thereto and whether such
Revolving Loan is a Base Rate Loan or Euro-Dollar Rate Loan, and such schedule
shall constitute rebuttable presumptive evidence of the principal amount owing
and unpaid on such Bank's Note; provided that the failure of any Bank to make
any such recordation or endorsement shall not affect the obligation of the
Borrower hereunder or under the Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Notes and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
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SECTION 2.4. Maturity of Revolving Loans.
Each Revolving Loan included in any Borrowing shall mature, and the
principal amount thereof shall be due and payable, on the last day of the
Interest Period applicable to such Borrowing.
SECTION 2.5. Interest Rates.
Subject to the terms of Section 8.1:
2.5.1 Base Rate Loans. Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the Base Rate, as it may change from time
to time during such Interest Period, plus the Applicable Margin. Such interest
shall be payable quarterly, in arrears, on the last day of each calendar
quarter, in respect of interest accrued in such month (or portion thereof),
commencing on June 30, 1998 (with the first payment date to cover the period
from the Closing Date until June 30, 1998), until maturity and thereafter on
demand. Any overdue principal of and, to the extent permitted by applicable law,
overdue interest on any Base Rate Loan shall bear interest, payable on demand,
for each day until paid at a rate per annum equal to the Default Rate.
2.5.2 Euro-Dollar Rate Loans. Each Euro-Dollar Rate Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at the Euro-Dollar Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof;
provided, however, if any Interest Period is for a period of more than three (3)
months, accrued interest shall also be due and payable at the end of each
consecutive three (3) month period within such Interest Period, commencing with
the first day thereof, as well as on the last day thereof. Any overdue principal
of and, to the extent permitted by law, overdue interest on any Euro- Dollar
Rate Loan shall bear interest, payable on demand, for each day until paid at a
rate per annum equal to the Default Rate; provided that the mere application of
the Default Rate to these Revolving Loans shall not give rise to the breakage of
an Interest Period, but only an increased margin applicable to these Revolving
Loans.
2.5.3 Agent to Determine. The Agent shall determine each interest rate
applicable to the Revolving Loans hereunder. The Agent shall give prompt notice
to the Borrower and the Banks by telecopier of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
2.5.4 Savings Clause. In no contingency or event whatsoever, whether by
reason of advancement of the proceeds hereof or otherwise, shall the amount paid
or agreed to be paid to the Banks for the use, forbearance or detention of money
advanced hereunder exceed the highest lawful rate permissible under any law
which a court of competent jurisdiction may deem applicable hereto. In the event
that such a court determines that any Bank has charged or received interest
hereunder in excess of the highest applicable rate, such rate shall
automatically be reduced
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to the maximum rate permitted by applicable law and such Bank shall promptly
refund to the Borrower any interest received by such Bank in excess of the
maximum lawful rate or, if so requested by the Borrower, shall apply such excess
to the principal balance of that Bank's Note. It is the intent hereof that the
Borrower not pay or contract to pay, and that the Banks not receive or contract
to receive, directly or indirectly in any manner whatsoever, interest in excess
of that which may be paid by the Borrower under applicable law.
SECTION 2.6. Fees.
2.6.1 Upfront Fee. On the Closing Date, the Banks shall have earned an
upfront fee of five one hundredths of one percent (.05%) of the Commitments,
which shall be paid to the Agent on the Closing Date for the account of each
Bank and be shared ratably among the Banks.
2.6.2 Commitment Fees. The Borrower shall pay to the Agent for the account
of each Bank an unused commitment fee calculated at the per annum rate described
below on the average daily amount of such Bank's Unused Commitment. Such
commitment fees shall accrue from and including the Closing Date and be due and
payable quarterly in arrears, commencing on June 30, 1998, and continuing on
each succeeding September 30, December 31, March 31 and June 30 thereafter. The
per annum rate applicable to the payment of the foregoing commitment fees shall
be one-fourth of one percent (1/4%) per annum.
2.6.3 Other Fees. The Borrower shall pay to the Agent, for the account and
sole benefit of the Agent, such fees and other amounts at such times as set
forth in any present or subsequent agreement made between the Borrower and the
Agent.
SECTION 2.7. Termination or Reduction of Commitments.
2.7.1 Termination of Commitments. The Commitments shall terminate on July
1, 1999 (the "Termination Date").
2.7.2 Voluntary Ratable Reductions of Commitments. The Borrower shall have
the further right to reduce ratably the Commitments of the Banks at any time or
from time to time, in the minimum amount of Five Million Dollars ($5,000,000)
per reduction and integral multiples of One Million Dollars ($1,000,000) beyond
such minimum amount, provided that (i) the Borrower shall have given the Agent
at least three (3) Domestic Business Days' advance written notice of such
election, (ii) as necessary, the Borrower shall have reduced, by repayment or
prepayment in accordance with the terms of Section 2.9, as the case may be, its
Borrowings by that amount necessary to cause total Borrowings then outstanding
not to exceed the aggregate amount of the reduced Commitments and (iii) any
Commitments once so reduced shall not be reinstated by the Banks.
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SECTION 2.8. Optional Prepayments.
The Borrower may, on any Business Day, upon giving notice to the Agent by
not later than 11:00 A.M. (Atlanta, Georgia time) on such Business Day, and
making payment to the Agent, for the ratable benefit of the Banks, on such
Business Day of any compensation required by Section 8.6, prepay any Base Rate
Borrowing in whole at any time, or from time to time in part in amounts
aggregating at least One Million Dollars ($1,000,000) and integral multiples of
Five Hundred Thousand Dollars ($500,000), by paying the principal amount to be
prepaid together with accrued interest thereon to the date of prepayment. Each
such optional prepayment shall be applied to prepay ratably the Revolving Loans
of the several Banks included in such Borrowing. Upon receipt of a notice of
prepayment pursuant to this Section 2.8, the Agent shall promptly notify each
Bank of the contents thereof and of such Bank's ratable share of such prepayment
and such notice shall not thereafter be revocable by the Borrower.
SECTION 2.9. Mandatory Prepayments.
On each date, if any, on which the Commitments are terminated or reduced
pursuant to Section 2.7, the Borrower shall repay or prepay such principal
amount of the outstanding Revolving Loans, if any, as may be necessary so that
after such payment the aggregate unpaid principal amount of the Revolving Loans
is reduced to zero, in the case of any termination, or does not exceed the
aggregate amount of the Commitments as then reduced, in the case of any
reduction, plus, in each case, accrued interest thereon to the date of
prepayment and any compensation required by Section 8.6.
SECTION 2.10. General Provisions as to Payments.
2.10.1 Timing. The Borrower shall make each payment of principal of, and
interest on, the Revolving Loans and of commitment and other fees hereunder, not
later than 11:00 A.M. (Atlanta, Georgia time) on the date when due, in federal
or other funds immediately available in Atlanta, Georgia, to the Agent's
Address. The Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Agent for the account of the Banks.
2.10.2 Next Banking Day. Whenever any payment of principal of, or interest
on, any Base Rate Loans or of commitment or other fees shall be due on a day
which is not a Domestic Business Day, the date for payment thereof shall be
extended to the next succeeding Domestic Business Day. Whenever any payment of
principal of or interest on, the Euro-Dollar Rate Loans shall be due on a day
which is not a Euro-Dollar Business Day, the date for payment thereof shall be
extended to the next succeeding Euro-Dollar Business Day unless such Euro-Dollar
Business Day falls in another calendar month, in which case the date for payment
thereof shall be the next preceding Euro-Dollar Business Day.
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SECTION 2.11. Computation of Interest and Fees.
Interest on the Revolving Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed, calculated as to each
Interest Period from and including the first day thereof to but excluding the
last day thereof. Commitment fees and any other fees payable hereunder on a per
annum basis shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
ARTICLE 3. CONDITIONS TO BORROWINGS
SECTION 3.1. Conditions to First Borrowing.
The obligation of each Bank to make a Revolving Loan on the occasion of the
first Borrowing is subject to the satisfaction of the conditions set forth in
Section 3.2 and receipt by the Agent of the following in a sufficient number of
counterparts (except as to the Notes) for delivery of a counterpart to each Bank
and retention of one counterpart by the Agent):
3.1.1 This Agreement. From each of the parties hereto of either (i) a duly
executed counterpart of this Agreement signed by such party or (ii) a facsimile
transmission stating that such party has duly executed a counterpart of this
Agreement and sent such counterpart to the Agent;
3.1.2 Notes. A duly executed Note for the account of each Bank complying
with the provisions of Section 2.3;
3.1.3 Opinion. An opinion (together with any opinions of local counsel
relied on therein) of legal counsel for the Borrower, dated as of the Closing
Date, substantially in the form of Exhibit D and covering such additional
matters relating to the transactions contemplated hereby as the Agent or any
Bank may reasonably request;
3.1.4 Closing Certificate. A certificate ("Closing Certificate"), dated as
of the Closing Date, substantially in the form of Exhibit E, signed by the chief
financial officer of the Borrower, to the effect that (i) no Default has
occurred and is continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower contained in Article 4 are true
on and as of the Closing Date;
3.1.5 Other Documents. All documents which the Agent or any Bank may
reasonably request relating to the existence of the Borrower, the corporate
authority for and the validity of this Agreement, the Notes and the other Loan
Documents, and any other matters relevant hereto, all in form and substance
satisfactory to the Agent, including, without limitation, a certificate of
incumbency of the Borrower, signed by the Secretary or an Assistant Secretary of
the Borrower, in substantially the form of Exhibit F, certifying as to the
names, true signatures and incumbency of
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the officer or officers of the Borrower authorized to execute and deliver the
Loan Documents and the action taken by the Board of Directors of the Borrower
authorizing the Borrower's execution, delivery and performance of this
Agreement.
3.1.6 Borrowing Notice. A Notice of Borrowing.
In addition, the credit facility created pursuant to the credit agreement
described in the first sentence of Section 5.11 below shall have been terminated
in conjunction with, and as part of, the refinancing of the existing
indebtedness of Borrower thereunder on the Closing Date.
SECTION 3.2. Conditions to All Borrowings.
The obligation of each Bank to make a Revolving Loan on the occasion of
each Borrowing is subject to the satisfaction of the following conditions:
3.2.1 Notice. Receipt by the Agent of a Notice of Borrowing;
3.2.2 No Default. The fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
3.2.3 Truth of Representations. The fact that the representations and
warranties of the Borrower contained in Article 4 of this Agreement shall be
true on and as of the date of such Borrowing; and
3.2.4 Not Overadvance. The fact that, immediately after such Borrowing, the
aggregate outstanding principal amount of the Revolving Loans of each Bank will
not exceed the amount of its Commitment.
Each Borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing as to the facts specified
in Sections 3.2.2, 3.2.3 and 3.2.4.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.1. Corporate Existence and Power.
Each of the Borrower and each Subsidiary is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to transact business in every jurisdiction
where, by the nature of its business, such qualification is necessary, and has
all corporate powers and all governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted, except where the
failure to so qualify,
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or obtain such licenses, authorizations, consents or approvals could not be
reasonably expected to have or cause a Material Adverse Effect.
SECTION 4.2. Corporate and Governmental Authorization; No Contravention.
The execution, delivery and performance by the Borrower of this Agreement,
the Notes and the other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate action, (iii)
require no action by or in respect of or filing with, any governmental body,
agency or official, (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation or of the articles of incorporation or
by-laws of the Borrower or, to the best of the Borrower's knowledge, of any
material agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower or any of its Subsidiaries, and (v) do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
SECTION 4.3. Binding Effect.
This Agreement constitutes a valid and binding agreement of the Borrower
enforceable in accordance with its terms, and the Notes and the other Loan
Documents, when executed and delivered in accordance with this Agreement, will
constitute valid and binding obligations of the Borrower enforceable in
accordance with their respective terms, provided that the enforceability hereof
and thereof is subject in each case to general principles of equity and to
bankruptcy, insolvency and similar laws affecting the enforcement of creditors'
rights generally.
SECTION 4.4. Financial Information; No Material Adverse Effect.
The audited balance sheet of the Borrower and its Consolidated Subsidiaries
as of the Fiscal Year ended closest to December 31, 1997, and the related
consolidated audited statements of income, shareholders' equity and cash flows
of the Borrower and its Consolidated Subsidiaries for the Fiscal Year then
ended, copies of which have been delivered to each of the Banks, fairly present,
in conformity with GAAP, the financial position of the Borrower and its
Consolidated Subsidiaries as of such dates and the results of its operations and
cash flow for such periods stated; provided, that during the term of this
Agreement after the Closing Date, future representations as to the matters set
forth in this sentence shall be deemed to refer to the most recent financial
statements delivered pursuant to Sections 5.1.1 and 5.1.2. Since December 31,
1997, there has been no event, act, condition or occurrence having or which
could be expected to have a Material Adverse Effect, except for matters
disclosed in the quarterly financial statements referred to above; provided that
during the term of this Agreement following the Closing Date, future
representations as to matters set forth in this sentence shall be deemed to
refer to the last day of the most recent audited financial statements delivered
by the Borrower pursuant to Section 5.1.1.
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SECTION 4.5. No Litigation.
There is no action, suit or proceeding pending, or to the knowledge of the
Borrower threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could have a Material Adverse Effect or which in any manner draws
into question the validity of, or could impair the ability of the Borrower to
perform its obligations under, this Agreement, the Notes or any of the other
Loan Documents.
SECTION 4.6. Compliance with Laws Generally; Compliance with ERISA.
The Borrower and each Subsidiary are in compliance in all material respects
with applicable laws (including, but not limited to, ERISA), regulations and
similar requirements of governmental authorities (including, but not limited to,
PBGC), noncompliance with which could have or cause a Material Adverse Effect,
except where the necessity of such compliance is being contested in good faith
through appropriate proceedings. To the best of the Borrower's knowledge, (i)
the Borrower and each member of the Controlled Group have fulfilled their
respective obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and are in compliance in all material respects with
the presently applicable provisions of ERISA and the Code, and have not incurred
any liability to the PBGC or a Plan under Title IV of ERISA; and (ii) neither
the Borrower nor any member of the Controlled Group is or ever has been
obligated to contribute to any Multiemployer Plan.
SECTION 4.7. Taxes.
There have been filed on behalf of the Borrower and its Subsidiaries all
federal, state and local income, excise, property and other tax returns which
are required to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrower or any
Subsidiary have been paid, except for amounts that either are immaterial or are
being disputed in good faith and by appropriate proceedings. The charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the opinion of the
Borrower, adequate.
SECTION 4.8. Subsidiaries.
As of the Closing Date, the Borrower has no Subsidiaries, except for the
Subsidiaries set forth on Schedule 4.8, all of which are Consolidated
Subsidiaries.
SECTION 4.9. Not a Public Utility, Holding Company, Investment Company or
Investment Adviser.
Neither the Borrower nor any Subsidiary is a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," or a "public
utility," within the meaning of the Public Utility
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Holding Company Act of 1935, as amended; or a "public utility" within the
meaning of the Federal Power Act, as amended; or an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended; or an "investment adviser" within
the meaning of the Investment Advisers Act of 1940, as amended.
SECTION 4.10. Ownership of Property; Liens.
The Borrower owns Properties, or interests in Properties, sufficient for
the conduct of its business; and none of such Properties is subject to any Lien
except as permitted in Section 5.8.
SECTION 4.11. No Default.
Neither the Borrower nor any of its Subsidiaries is in default under or
with respect to any agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound which could have or cause a
Material Adverse Effect. No Default has occurred and is continuing.
SECTION 4.12. Full Disclosure.
All written information and, to the best of the Borrower's knowledge, all
other information, heretofore furnished by the Borrower to the Agent or any Bank
for purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Agent or any Bank will be, true, accurate and complete in every
material respect or based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed to the Banks in
writing any and all facts which could reasonably be expected to have or cause a
Material Adverse Effect.
SECTION 4.13. Environmental Matters.
To the best of the Borrower's knowledge, (i) neither the Borrower nor any
Subsidiary is subject to any Environmental Liability which could have or cause a
Material Adverse Effect and neither the Borrower nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the Properties located in the United States,
owned by either the Borrower or a Subsidiary, has been identified on any current
or proposed (A) National Priorities List under 40 C.F.R. ss. 300, (B) CERCLIS
list or (C) any list arising from a state statute similar to CERCLA; (ii) to the
best of the Borrower's knowledge, no Hazardous Materials have been or are being
used, produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed or otherwise handled at, or shipped or transported to or
from the Properties or are otherwise present at, in or under the Properties,
owned or operated by either the Borrower or a Subsidiary, or, to the best of the
knowledge of the Borrower, at or from any adjacent site or facility, except for
Hazardous Materials, such as cleaning solvents, pesticides and other materials
used, produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, managed, or otherwise handled in the ordinary course of business in
compliance with all
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applicable Environmental Requirements; and (iii) to the best of the Borrower's
knowledge, the Borrower and its Subsidiaries are in compliance with all
Environmental Requirements in connection with the ownership, use and operation
of the Properties and the Borrower's and such Subsidiary's respective
businesses.
SECTION 4.14. Capital Stock.
All Capital Stock, debentures, bonds, notes and all other securities of the
Borrower and its Subsidiaries presently issued and outstanding are validly and
properly issued in accordance with all applicable laws, including but not
limited to, the "Blue Sky" laws of all applicable states and the federal
securities laws.
SECTION 4.15. Margin Stock.
Neither the Borrower nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of purchasing or carrying
any Margin Stock, and no part of the proceeds of any Revolving Loan will be used
to purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock, or be used for any purpose
which violates, or which is inconsistent with the provisions of, Regulations G,
T, U or X.
SECTION 4.16. Solvency.
After giving effect to the execution and delivery of the Loan Documents and
the making of the Revolving Loans under this Agreement, the Borrower will be
Solvent.
SECTION 4.17. Possession of Franchises, Licenses, Etc.
The Borrower and its Subsidiaries possess to the extent material all
franchises, certificates, licenses, permits and other authorizations from
governmental and political subdivisions or regulatory authorities, and all
patents, trademarks, service marks, trade names, copyrights, franchises,
licenses and other rights that are necessary for ownership, maintenance and
operation of any of their respective material Properties and assets, and neither
the Borrower nor any of its Subsidiaries is in violation of any thereof, which,
individually or in the aggregate, would or might have or cause a Material
Adverse Effect. Without limiting the generality of the foregoing, and, in any
event, the Borrower and its Subsidiaries possess all Franchise Rights necessary
for the ownership, operation and development of its (or their) franchised
restaurant business as conducted, or contemplated to be conducted, by the
Borrower and such Subsidiaries, including, without limitation, in the case of
"Applebee's" restaurants, franchise agreements for each franchised restaurant
location and exclusive development rights for each designated area in which
franchised restaurants are located or contemplated to be located.
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SECTION 4.18. Insurance.
The Borrower and each of its Subsidiaries maintains adequate insurance on,
and in respect of the ownership and operation of, its Properties in at least
such amounts and against at least such risks as are usually insured against in
the same general area by companies of established repute engaged in the same or
similar business.
ARTICLE 5. COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable hereunder or under any Note remains unpaid:
SECTION 5.1. Information.
The Borrower will deliver to each of the Banks:
5.1.1 Annual Audit. As soon as available and in any event within ninety
(90) days after the end of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Year and
the related consolidated statements of income, shareholders' equity and cash
flows for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous fiscal year, all certified by independent public
accountants of nationally recognized standing, with such certification to be
free of any material exceptions and qualifications; provided that, the
information required by this paragraph may be satisfied by delivery of
information pursuant to Section 5.1.5 or Section 5.1.6;
5.1.2 Interim Statements. As soon as available and in any event within
fifty (50) days after the end of each of the first three (3) Fiscal Quarters of
each Fiscal Year, a consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter and the related
statement of income and statement of cash flows for such quarter and for the
portion of the Fiscal Year ended at the end of such quarter, setting forth in
each case in comparative form the figures for the corresponding quarter and the
corresponding portion of the previous Fiscal Year, all certified (subject to
normal year-end adjustments) as to fairness of presentation, GAAP and
consistency by the chief financial officer of the Borrower; provided that the
information required by this paragraph may be satisfied by delivery of
information pursuant to Section 5.1.5 or Section 5.1.6;
5.1.3 Compliance Certificates. Simultaneously with the delivery of each set
of financial statements referred to in Sections 5.1.1 and 5.1.2, a certificate,
substantially in the form of Exhibit G (a "Compliance Certificate"), of the
chief financial officer of the Borrower (i) setting forth in reasonable detail
the calculations required to establish whether the Borrower was in compliance
with the requirements of Sections 5.3, 5.4, 5.5, 5.6 and 5.19 on the date of
such financial statements and (ii) stating whether any Default exists on the
date of such certificate and, if any
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Default then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
5.1.4 Default Notice. Promptly (and, in any event, within five (5) Domestic
Business Days) after the Borrower becomes aware of the occurrence of any
Default, a certificate of the chief financial officer of the Borrower setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
5.1.5 Proxy. Promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
5.1.6 Registration Statements. Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly or monthly reports which the
Borrower shall have filed with the Securities and Exchange Commission;
5.1.7 ERISA Notices. If and when any member of the Controlled Group (i)
gives or is required to give notice to the PBGC of any reportable event (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA, or
knows that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an
intent to terminate or appoint a trustee to administer any Plan, a copy of such
notice; and
5.1.8 Other Reports. From time to time such additional information
regarding the financial position or business of the Borrower and its
Subsidiaries as the Agent, at the request of any Bank, may reasonably request.
SECTION 5.2. Inspection of Property, Books and Records.
The Borrower will keep, and require each Subsidiary to keep, proper books
of record and account in which full, true and correct entries in conformity with
GAAP (or, in the case of any non-domestic Subsidiary, such other accounting
standards, rules, regulations and practices applicable to businesses operating
in the locality in which each such Person operates); and permit, and cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense prior
to the occurrence of a Default and at the Borrower's expense after the
occurrence and during the continuance of a Default to visit and inspect any of
their respective properties, to examine and make abstracts from any of their
respective books and records and to discuss their respective affairs, finances
and accounts with their respective officers, employees and independent public
accountants. The Borrower agrees to cooperate and assist in such visits and
inspections in each case at such reasonable times and as often as may reasonably
be desired.
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SECTION 5.3. Adjusted Funded Debt/Adjusted Capitalization Ratio.
The Adjusted Funded Debt/Adjusted Capitalization Ratio will not at any time
exceed .65:1.
SECTION 5.4. Minimum Stockholders' Equity.
Stockholders' Equity will at no time be less than the sum of (i)
$180,000,000, as of the Fiscal Quarter ended closest to December 31, 1996 (the
"Base Fiscal Quarter"), plus (ii) fifty percent (50%) of Consolidated Net Income
(if positive) for each Fiscal Quarter subsequent to the Base Fiscal Quarter;
plus, without duplication, (iii) seventy-five percent (75%) of any net proceeds
received by Borrower from any offering of equity securities (other than
Redeemable Preferred Stock) by Borrower subsequent to the Closing Date; plus,
without duplication, (iv) seventy-five percent (75%) of any net proceeds
received by Borrower from any conversion of debt into equity subsequent to the
Closing Date; plus, without duplication, (v) seventy-five percent (75%) of any
adjustment to equity due to any pooling of interests occurring subsequent to
December 31, 1996; plus, without duplication, (vi) seventy-five percent (75%) of
any increase in Stockholders' Equity resulting from the issuance or exchange of
any equity securities in furtherance of any acquisition constituting a permitted
investment under Section 5.19.
SECTION 5.5. Fixed Charge Coverage Ratio.
Borrower's Fixed Charge Coverage Ratio, measured on a rolling four (4)
Fiscal Quarters' basis as of the end of each Fiscal Quarter, commencing with the
Fiscal Quarter ended closest to December 31, 1997, shall be (i) not less than
1.80:1, for the Fiscal Quarters ending closest to December 31, 1997, March 31,
1998 and June 30, 1998, (ii) not less than 1.90:1, for the Fiscal Quarter ending
closest to September 30, 1998; and (iii) not less than 2.00:1, for each Fiscal
Quarter ending thereafter.
SECTION 5.6. Total Funded Debt/EBITDA Ratio.
The ratio which (i) the Total Funded Debt of the Borrower and its
Consolidated Subsidiaries at the end of any Fiscal Quarter, commencing with the
Fiscal Quarter ended closest to December 31, 1997, bears to (ii) the EBITDA of
the Borrower and its Consolidated Subsidiaries, measured on a rolling four (4)
Fiscal Quarters' basis as of the end of such Fiscal Quarter, shall be (i) not
more than 3.80:1, for the Fiscal Quarters ending closest to December 31, 1997
and closest to March 31, 1998, and (ii) not more than 3.50:1 for each Fiscal
Quarter ending thereafter. In computing EBITDA in respect of the foregoing
ratio, (a) any asset or stock dispositions by the Borrower consisting of the
sale of a business line, segment or other group of related stores (including,
particularly, for this purpose, the Applebee's Spinoff) occurring within a
Fiscal Quarter shall be accounted for by reducing EBITDA by the individual
EBITDA attributable to each store within such group for such Fiscal Quarter and
the three (3) preceding Fiscal Quarters; and (b) any asset or stock acquisitions
by the Borrower consisting of the purchase of a business, line, segment or other
group
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of related stores occurring within a Fiscal Quarter shall be accounted for by
increasing EBITDA by the individual EBITDA attributable to each store within
such group for such Fiscal Quarter and for the three (3) preceding Fiscal
Quarters; in each instance, on an historical basis, in a manner which Borrower
shall determine, but subject to prior review with, and approval by, the Agent.
SECTION 5.7. Negative Pledge.
The Borrower will not, nor will the Borrower permit any Subsidiary to,
create, assume or suffer to exist any Lien on any asset now owned or hereafter
acquired by it, except: (i) those Liens, if any, described on Schedule 5.7,
concerning existing debt of the Borrower, to be set forth and described more
particularly therein, together with any Lien arising out of the refinancing,
extension, renewal or refunding of any debt secured by any such Lien, provided
that such debt is not secured by any additional assets, and the amount of such
debt secured by any such Lien is not increased; (ii) Liens incidental to the
conduct of its business or the ownership of its Properties which (A) do not
secure debt and (B) do not in the aggregate materially detract from the value of
its Properties or materially impair the use thereof or the operation of its
business, including, without limitation, easements, rights of way, restrictive
covenants, zoning and other similar restrictions on real property; (iii)
materialmen's mechanics', warehousemen's carriers', landlords' and other similar
statutory Liens which secure debt or other obligations that are not past due,
or, if past due are being contested in good faith by the Borrower or the
appropriate Subsidiary by appropriate proceedings; (iv) Liens for taxes not
delinquent or taxes being contested in good faith and by appropriate
proceedings; (v) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation; (vi) deposits to
secure performance of bids, trade contracts, leases, statutory obligations (to
the extent not excepted elsewhere herein); (vii) grants of security and rights
of setoff in accounts, securities and other properties held at banks or
financial institutions to secure the payment or reimbursement under overdraft,
letter of credit, acceptance and other credit facilities; (viii) rights of
setoff, banker's liens and other similar rights arising solely by operation of
law; (ix) Purchase Money Liens; (x) Liens on any Properties acquired by Borrower
or any Subsidiary subsequent to the Closing Date, to the extent that (A) such
Liens are existing at the time of acquisition, (B) the debt secured thereby is
not secured by any other Properties of Borrower or such Subsidiary except the
acquired Properties, (C) the amount of such debt so secured thereby is not
increased at or subsequent to the acquisition and (D) the total amount of all
such debt secured by all such acquired Properties does not exceed at any time,
in aggregate amount, fifteen percent (15%) of Tangible Net Worth; together with
any Lien arising out of the refinancing, extension, renewal or refunding of any
debt secured by any such Lien, provided that such debt is not secured by any
additional assets, and the amount of such debt secured by any such Lien is not
increased; (xi) capital leases made in the ordinary course of business (but
excluding, however, sale-leaseback transactions in any event) in which there is
no provision for title to the leased Property to pass to the Borrower or such
Subsidiary at the expiration of the lease term or as to which no bargain
purchase option exists; and (xii) rights of lessors in respect of Properties
leased to the Borrower or its Subsidiaries under operating leases.
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SECTION 5.8. Maintenance of Existence.
Except as permitted in Section 5.10, the Borrower shall, and shall cause
each Subsidiary to, maintain its corporate existence and carry on its business
in substantially the same manner and in substantially the same fields as such
business is now carried on and maintained. Without limiting the generality of
the foregoing, the Borrower shall, and shall cause each Subsidiary to, maintain
at all times in full force and effect all Franchise Rights necessary to the
ownership, operation and development of all franchised restaurant business
conducted, or contemplated to be conducted, by the Borrower and such
Subsidiaries, except with respect to Voluntary Store Closings and except with
respect to any Applebee's Spinoff.
SECTION 5.9. Dissolution.
Neither the Borrower nor any of its Subsidiaries shall suffer or permit
dissolution or liquidation either in whole or in part, except through corporate
reorganization to the extent permitted by Section 5.10.
SECTION 5.10. Consolidations, Mergers and Sales of Assets.
The Borrower will not, nor will it permit any Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment, provided, however, that, subject at all times to
Section 5.19, the Borrower or any Subsidiary may merge with another Person
(which is not the Borrower or such Subsidiary) if (i) such Person was organized
under the laws of the United States of America or one of its states (ii) the
Borrower or such Subsidiary (as the case may be) is the corporation surviving
such merger and (iii) immediately after giving effect to such merger, no Default
shall have occurred and be continuing, and any Subsidiaries of the Borrower may
(i) merge or consolidate with each other or with the Borrower (so long as the
Borrower is the corporation surviving such merger), or (ii) sell assets to each
other or to the Borrower; and, provided, further, that the Borrower may, upon
giving at least two (2) Business Days written notice to the Agent thereof,
consummate an Applebee's Spinoff, if made on the terms set forth within the
definition thereof, and provided that the Net Cash Proceeds therefrom, to the
extent not used to repay, in full or in part, the indebtedness of Borrower then
existing under the credit agreement described in Section 6.1.14 below, are used
either (i) to make an optional prepayment of any Borrowings then outstanding
hereunder, or (ii) to make investments permitted under Section 5.19 or (iii) for
working capital in Borrower's business; but for no other purposes.
SECTION 5.11. Use of Proceeds.
The proceeds of the initial Revolving Loans will be used by the Borrower to
refinance all indebtedness then outstanding under its Credit Agreement, dated as
of December 10, 1997, with Wachovia Bank, N.A., as amended to date. The proceeds
of all subsequent Revolving Loans will be used by the Borrower solely for
working capital, and for no other purpose. Without limitation
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of the foregoing, no portion of the proceeds of the Revolving Loans will be used
by the Borrower (i) in connection with, whether directly or indirectly, any
tender offer for, or other acquisition of, stock of any corporation with a view
towards obtaining control of such other corporation, (ii) directly or
indirectly, for the purpose, whether immediate, incidental or ultimate, of
purchasing or carrying any Margin Stock, (iii) generally, to finance
investments, even if such investments are otherwise permitted hereunder, (iv)
for any other purpose in violation of any term of this Agreement or of any
applicable law or regulation.
SECTION 5.12. Compliance with Laws; Payment of Taxes.
The Borrower will, and will cause each of its Subsidiaries and each member
of the Controlled Group to, comply in all material respects with applicable laws
(including but not limited to ERISA), regulations and similar requirements of
governmental authorities (including but not limited to PBGC), except where the
necessity of such compliance is being contested in good faith through
appropriate proceedings. The Borrower will, and will cause each of its
Subsidiaries to, pay promptly when due all taxes, assessments governmental
charges, claims for labor, supplies, rent and other obligations which, if
unpaid, might become a Lien against the Property of the Borrower or any
Subsidiary, except liabilities being contested in good faith and against which,
if requested by the Agent, the Borrower will set up reserves in accordance with
GAAP.
SECTION 5.13. Insurance.
The Borrower will maintain, and will cause each of its Subsidiaries to
maintain (either in the name of the Borrower or in such Subsidiary's own name),
with financially sound and reputable insurance companies, insurance on, and in
respect of the ownership and operation of, its Properties in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies of established repute engaged in the same or
similar business.
SECTION 5.14. Change in Fiscal Year.
The Borrower will not change its Fiscal Year without the consent of the
Required Banks.
SECTION 5.15. Maintenance of Property.
The Borrower shall, and shall cause each Subsidiary to, maintain all of its
Properties in good condition, repair and working order, ordinary wear and tear
excepted.
SECTION 5.16. Environmental Notices.
The Borrower shall furnish to the Agent, promptly after the Borrower
becomes aware thereof, written notice of all Environmental Liabilities, pending,
threatened Environmental Proceedings, Environmental Notices, Environmental
Judgments and Orders and Environmental
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Releases, at, on, in, under or in any way affecting the Properties or any
adjacent property and all facts, events, or conditions that could reasonably be
expected to lead to any of the foregoing.
SECTION 5.17. Environmental Matters.
The Borrower will not, and will not permit any Third Party to, use,
produce, manufacture, process, treat, recycle, generate, store, dispose of,
manage at, or otherwise handled or ship or transport to or from the Properties
any Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed, or otherwise
handled in the ordinary course of business in compliance with all applicable
Environmental Requirements.
SECTION 5.18. Environmental Releases.
The Borrower agrees that upon the occurrence of an Environmental Release
(except for any Environmental Release which (x) occurred in compliance with all
Environmental Requirements and (y) could not reasonably be expected to have or
cause a Material Adverse Effect), it will act immediately to investigate the
extent of, and to take appropriate remedial action to eliminate, such
Environmental Release, whether or not ordered or otherwise directed to do so by
any Environmental Authority.
SECTION 5.19. Investments.
The Borrower will not make (nor will the Borrower permit any Subsidiary to
make) any investment in any Person or Property (which term "investment," for
purposes hereof, shall mean and include, without limitation, the acquisition of
any property, the issuance, acquisition or exchange of any capital stock, debt
or other obligations or security to, from or with any Person, the making of any
loan, advance, extension of credit, credit accommodation, Guarantee or capital
contribution to or on behalf of any Person, and the leasing or subleasing of any
property to any Person), provided, however, that, notwithstanding the foregoing,
the Borrower (or any Subsidiary) may, from time to time, undertake the
following, without the necessity of obtaining the Required Lenders' prior
written consent thereto:
(i) Current Assets. Acquire current assets for use in, or arising from, the
sale of goods or services in the ordinary course of its business (including, for
this purpose, but without limitation, credit card receivables);
(ii) Capital Expenditures. Make capital expenditures in the ordinary course
of its business;
(iii) Franchise Fees. Pay franchisee fees and royalties to its franchisors
in the ordinary course of its business;
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(iv) Escrow Deposits. Make or maintain escrow deposits for the payment of
taxes, rents, utilities, insurance or like matters in the ordinary course of its
business;
(v) Bank Accounts. Make and maintain deposits of cash in demand deposit
accounts of banks in the ordinary course of its business, and make endorsements
of checks, drafts or other instruments in connection therewith;
(vi) Surplus Cash. Consistent at all times with the Borrower's internal
Statement of Investment Policy, invest surplus cash in (A) obligations of, or
guaranteed by, the United States of America or any agency thereof, (B)
short-term certificates of deposit issued by, and time deposits with, any Bank
or any other financial institution domiciled in the United States of America
with assets of at least $500,000,000, (C) short-term commercial paper rated at
least "A1" by Standard & Poors or "P1" by Moody's, and (D) fixed or adjustable
rate corporate debt securities with a credit rating of at least double A (Aa/AA)
by either Moody's or Standard & Poors, provided that any fixed rate debt
securities have a maturity of one year or less;
(vii) Subsidiaries. Make investments in those Consolidated Subsidiaries of
the Borrower which are wholly-owned, directly or indirectly, by the Borrower, in
the ordinary course of, and pursuant to the reasonable requirements of, the
Borrower's and such Subsidiaries' respective businesses, provided that the
aggregate amount of such investments which may be outstanding at any one time
hereafter, as to all such Subsidiaries, shall not exceed, in any event, (A) ten
percent (10%) of consolidated total assets of Borrower and its Consolidated
Subsidiaries at any time prior to December 30, 1997, (B) seven and one-half
percent (7-1/2%) of consolidated total assets of Borrower and its Consolidated
Subsidiaries on or at any time after December 31, 1997, but prior to June 30,
1998, and (C) five percent (5%) of consolidated total assets of Borrower and its
Consolidated Subsidiaries on or after June 30, 1998; it being understood and
agreed that (a) there shall be excluded from such calculation any investment
deemed made by the Borrower in DF&R Restaurants, Inc., a Texas corporation which
is a wholly-owned Consolidated Subsidiary of the Borrower, pursuant to the
accounting for the prior acquisition of such corporation by the Borrower as a
pooling of interests; (b) there shall be deducted in any event from the amount
of investments in Subsidiaries which may be made pursuant to this clause (vii)
the aggregate amount of Capitalized Lease Obligations of all Subsidiaries which
are at any time outstanding, if and to the extent not already counted against
such amount as an investment of Borrower; i.e., as a Capitalized Lease
Obligation owing to Borrower as lessor or sublessor; and (c) the provisions of
this clause (vii) shall be the exclusive means by which the Borrower (or any
Subsidiary) may make investments in any Subsidiaries (whether or not
wholly-owned Subsidiaries) and shall override any other provisions of this
Section 5.19 (including, particularly, clauses (x), (xi) and (xii) below) which
may be construed otherwise to permit such investments.
(viii) Travel Advances. Make travel and similar advances to employees from
time to time in the ordinary course of business;
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(ix) Special Life Insurance Program. The Borrower may invest up to Eight
Hundred Fifty Thousand Dollars ($850,000) per Fiscal Year in the making of
annual premiums payable on the split dollar joint survivor life insurance
program implemented, or to be implemented, covering the lives of Tom E. DuPree,
Jr. and his spouse Anne DuPree, with an initial death benefit of Fifty Million
Dollars ($50,000,000), provided, however, that (i) such investments are made
over a period not to exceed ten (10) Fiscal Years and (ii) Borrower maintains at
all times during the effective period of the program a security interest in
policy proceeds and cash values of policies issued as part of the program equal
in amount to not less than its then cumulative premium investments;
(x) Applebee's Franchisees. Make investments in franchisees of "Applebee's"
restaurants, but no investment in Applebee's International, Inc. (or any Person
which subsequent hereto shall become the franchisor of "Applebee's" restaurants)
shall be permitted to be made subsequent to the Closing Date, notwithstanding
this clause (x) or any other provision of this Section, except with the prior
written consent of the Required Lenders;
(xi) Other Restaurant Concepts. Make investments in other restaurant
concepts, besides "Applebee's," so long as the total amount of all such
investments made subsequent to the Closing Date does not exceed Ten Million
Dollars ($10,000,000); or
(xii) Purchase Money Debt. Make investments in the nature of purchase money
debt issued in the Borrower's favor in respect of any Applebee's Spinoff in
accordance with, and subject to the limitations set forth in, said definition.
In the event that, and to the extent that, as of the Closing Date, any of
the terms or conditions set forth in this Section 5.19 (or in Section 5.20
below) shall operate to restrict the ability of any Consolidated Subsidiary to
(i) pay dividends or make distributions permitted under applicable law on any
capital stock of such Subsidiary owned by the Borrower or any other Consolidated
Subsidiary, (ii) pay any indebtedness or other obligation owed to the Borrower
or any other Consolidated Subsidiary, (iii) make loans or advances to the
Borrower or any other Consolidated Subsidiary, or (iv) transfer any of its
property or assets to Borrower or any other Consolidated Subsidiary (the
"Subsidiary Activities"), and the imposition of such restriction on any such
Subsidiary Activities pursuant hereto is expressly prohibited under, or
constitutes an event of default under, the terms of the Borrower's existing
indenture for its 9-3/4% senior notes of due June 1, 2006, then, notwithstanding
the foregoing, such Subsidiary Activities shall be permitted.
SECTION 5.20. Subsidiary Debt.
Except solely to the extent expressly permitted in clause (vii) of Section
5.19 of this Agreement, the Borrower will not permit any Consolidated Subsidiary
of the Borrower which is a wholly-owned Subsidiary, directly or indirectly, of
the Borrower, to create, incur or suffer to exist any of the following: (i)
indebtedness for borrowed funds; (ii) Capitalized Lease Obligations, provided,
however, that DF&R Restaurants, Inc. and its Subsidiaries may incur Capitalized
Lease Obligations in an aggregate amount not to exceed Ten Million Dollars
($10,000,000) at any one time
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outstanding; (iii) Guarantees; (iv) debts, liabilities or obligations to any
seller incurred to pay the deferred purchase price of property or services
having a deferred purchase price of One Million Dollars ($1,000,000) or more,
excepting, in any event, trade accounts payable arising in the ordinary course
of business and purchase options prior to their exercise; and (v) debts,
liabilities or obligations in respect of Synthetic Leases.
ARTICLE 6. DEFAULTS
SECTION 6.1. Events of Default.
If one or more of the following events ("Events of Default") shall have
occurred and be continuing:
6.1.1 Non-Payment. The Borrower (i) shall fail to pay when due any
principal of any Revolving Loan or (ii) shall fail to pay any interest on any
Revolving Loan within five (5) Domestic Business Days after such interest shall
become due, or (iii) shall fail to pay any fee or other amount payable hereunder
or under any Loan Document within five (5) Domestic Business Days after such fee
or other amount becomes due; or
6.1.2 Failure to Observe Certain Covenants. The Borrower shall fail to
observe or perform any covenant contained in Sections 5.3 through 5.9, 5.10,
5.11, 5.12, 5.15 or 5.19, inclusive; or
6.1.3 Failure to Observe Covenants Generally. The Borrower shall fail to
observe or perform any covenant or agreement contained or incorporated by
reference in this Agreement (other than those covered by Sections 6.1.1 and
6.1.2) and such failure shall not have been cured within ten (10) days after the
earlier to occur of (i) written notice thereof has been given to the Borrower by
the Agent at the request of any Bank or (ii) an executive, senior financial or
accounting officer of the Borrower otherwise becomes aware of any such failure;
or
6.1.4 Misrepresentation. Any representation, warranty, certification or
statement made by the Borrower in Article IV of this Agreement or in any
certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
6.1.5 Cross-Default. The Borrower or any Subsidiary shall fail to make any
payment in respect of any debt, liability or obligation outstanding individually
or in the aggregate with all other such debts, liabilities or obligations, equal
to or in excess of Five Hundred Thousand Dollars ($500,000), other than the
Notes, when due or within any applicable grace period; or any event or condition
shall occur which results in the acceleration of the maturity of any such debt,
liability or obligation outstanding of the Borrower or any Subsidiary
individually or in the aggregate with all other such debts, liabilities or
obligations equal to or in excess of Five Hundred Thousand
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Dollars ($500,000) or the mandatory prepayment or purchase of any such debt,
liability or obligation by the Borrower (or its designee) or such Subsidiary (or
its designee) individually or in the aggregate with all other such debts,
liabilities or obligations equal to or in excess of Five Hundred Thousand
Dollars ($500,000) prior to the scheduled maturity thereof, or enables (or, with
the giving of notice or lapse of time or both, would enable) the holders of any
such debt, liability or obligation individually or in the aggregate with all
other such debts, liabilities or obligations equal to or in excess of Five
Hundred Thousand Dollars ($500,000) or any Person acting on such holders' behalf
to accelerate the maturity thereof or require the mandatory prepayment or
purchase thereof prior to the scheduled maturity thereof, without regard to
whether such holders or other Person shall have exercised or waived their right
to do so; or
6.1.6 Voluntary Bankruptcy. The Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its debts as they
become due, or shall take any corporate action to authorize any of the
foregoing; or
6.1.7 Involuntary Bankruptcy. An involuntary case or other proceeding shall
be commenced against the Borrower or any Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of sixty (60) days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws as now or hereafter
in effect; or
6.1.8 ERISA. The Borrower or any member of the Controlled Group shall fail
to pay when due any material amount which it shall have become liable to pay to
the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate
a Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any
member of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or
6.1.9 Judgments. One or more judgments or orders for the payment of money
in an aggregate amount equal to or greater than Five Hundred Thousand Dollars
($500,000) shall
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be rendered against the Borrower or any Subsidiary and such judgment or order
shall continue unsatisfied and unstayed for a period of thirty (30) days; or
6.1.10 Tax Liens. A federal tax Lien shall be filed against the Borrower
under Section 6323 of the Code or a Lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA and in either case such
Lien shall remain undischarged for a period of thirty (30) days after the date
of filing; or
6.1.11 Change of Control. Tom E. DuPree, Jr. shall cease to own and
control, beneficially and with power to vote, at least fifteen percent (15%) of
the outstanding shares of the voting common stock of the Borrower; or any Person
(other than Tom E. DuPree, Jr.) or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d- 3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
twenty percent (20%) or more of the outstanding shares of the voting common
stock of the Borrower; or as of any date, a majority of the Board of Directors
of the Borrower consists of individuals who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by a Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
6.1.12 Loss of Franchise Rights. If any of the Franchise Rights of the
Borrower or its Subsidiaries shall be forfeited, suspended, lost, rejected,
disclaimed, impaired, curtailed or otherwise adversely altered or affected in
any manner, in whole or in any material part, for any reason whatsoever, whether
or not related to the Borrower's or such Subsidiary's performance of its duties
and obligations as franchisee at any time hereafter except with respect to any
Voluntary Store Closing and except in connection with any Applebee's Spinoff; or
there shall occur any default by the Borrower or any such Subsidiary in the
payment, performance or observance of any terms, covenants or conditions of any
franchise or development agreements giving rise to the existence and/or
continuation of any such Franchise Rights, and any grace or cure period relative
thereto granted therein shall have expired without such default being waived or
cured except in connection with any Applebee's Spinoff; or
6.1.13 Material Adverse Effect. The occurrence of any event, act,
occurrence, or condition which the Required Banks determine either does or has a
reasonable probability of causing, or resulting in, a Material Adverse Effect;
or
6.1.14 Other Credit Agreement. An "Event of Default" (as that term is
defined therein) shall occur and be continuing under that certain Second Amended
and Restated Credit Agreement, dated as of March 1, 1998, among the Borrower,
the Agent, Wachovia and certain other banks listed therein, as it may be
modified or amended from time to time.
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then, and in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (ii) if requested by the Required Banks, by notice to
the Borrower declare the Notes (together with accrued interest thereon) to be,
and the Notes shall thereupon become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in Sections 6.1.6 or
6.1.7 above occurs with respect to the Borrower or any Subsidiary, without any
notice to the Borrower or any other acts by the Agent or the Banks, the
Commitments shall thereupon terminate and the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower, together with interest thereon at the Default Rate accruing on the
principal amount thereof from and after the date of such Event of Default.
Notwithstanding the foregoing, the Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Banks.
SECTION 6.2. Notice of Default.
The Agent shall give notice to the Borrower of any Default under Section
6.1.3 promptly upon being requested to do so by any Bank and shall thereupon
notify all the Banks thereof.
ARTICLE 7. THE AGENT
SECTION 7.1. Appointment; Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the Agent to act as
its agent hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Agent; and (d) shall not be responsible for any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for
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herein or therein or in connection herewith or therewith, except for its own
gross negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. The
provisions of this Article VII are solely for the benefit of the Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
SECTION 7.2. Reliance by Agent.
The Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telefax, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent and accountants or other experts selected by the
Agent. As to any matters not expressly provided for by this Agreement or any
other Loan Document, the Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder and thereunder in accordance with
instructions signed by the Required Banks, and such instructions of the Required
Banks in any action taken or failure to act pursuant thereto shall be binding on
all of the Banks.
SECTION 7.3. Defaults.
The Agent shall not be deemed to have knowledge of the occurrence of a
Default or an Event of Default (other than the nonpayment of principal of or
interest on the Revolving Loans) unless the Agent has received notice from a
Bank or the Borrower specifying such Default or Event of Default and stating
that such notice is a "Notice of Default". In the event that the Agent receives
such a notice of the occurrence of a Default or an Event of Default, the Agent
shall give prompt notice thereof to the Banks. The Agent shall give each Bank
prompt notice of each nonpayment of principal of or interest on the Revolving
Loans whether or not it has received any notice of the occurrence of such
nonpayment. The Agent shall (subject to Section 9.6) take such action hereunder
with respect to such Default or Event of Default as shall be directed by the
Required Banks, provided that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Banks.
SECTION 7.4. Rights of Agent as a Bank.
With respect to the Revolving Loans made by it, Wachovia in its capacity as
a Bank hereunder shall have the same rights and powers hereunder as any other
Bank and may exercise the
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same as though it were not acting as the Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include Wachovia in its
individual capacity. The Agent may (without having to account therefor to any
Bank) accept deposits from, lend money to and generally engage in any kind of
banking, trust or other business with the Borrower (and any of its Affiliates)
as if it were not acting as the Agent, and the Agent may accept fees and other
consideration from the Borrower (in addition to any agency fees and arrangement
fees heretofore agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or otherwise without
having to account for the same to the Banks.
SECTION 7.5. Indemnification.
Each Bank severally agrees to indemnify the Agent, to the extent the Agent
shall not have been reimbursed by the Borrower, ratably in accordance with its
Commitment, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including, without
limitation, counsel fees and disbursements) or disbursements of any kind and
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of this Agreement or any other Loan
Document or any other documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby (excluding, unless an Event
of Default has occurred and is continuing, the normal administrative costs and
expenses incident to the performance of its agency duties hereunder) or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided, however that no Bank shall be liable for any of the foregoing to the
extent they arise from the gross negligence or willful misconduct of the Agent.
If any indemnity furnished to the Agent for any purpose shall, in the opinion of
the Agent, be insufficient or become impaired, the Agent may call for additional
indemnity and cease, or not commence, to do the acts indemnified against until
such additional indemnity is furnished.
SECTION 7.6. Payee of Note Treated as Owner.
The Agent may deem and treat the payee of any Note as the owner thereof for
all purposes hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Agent and the provisions of
Section 9.8 have been satisfied. Any requests, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor or replacement thereof.
SECTION 7.7. Nonreliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Agent or any other Bank, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of the Borrower and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and information as
it shall deem appropriate at the time, continue to make its own analysis and
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decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself informed as
to the performance or observance by the Borrower of this Agreement or any of the
other Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Agent hereunder or under
the other Loan Documents, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other Person (or any of
their Affiliates) which may come into the possession of the Agent.
SECTION 7.8. Failure to Act.
Except for action expressly required of the Agent hereunder or under the
other Loan Documents, the Agent shall in all cases be fully justified in failing
or refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.5 against any and all liability and expense which may be
incurred by the Agent by reason of taking, continuing to take, or failing to
take any such action.
SECTION 7.9. Resignation of Agent.
Subject to the appointment and acceptance of a successor Agent as provided
below, the Agent may resign at any time by giving notice thereof to the Banks.
Upon any such resignation, the Required Banks shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Banks and shall have accepted such appointment within thirty (30) days
after the retiring Agent's notice of resignation, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article 7
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent hereunder.
ARTICLE 8. CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.1. Basis for Determining Interest Rate Inadequate or Unfair.
If on or prior to the first day of any Interest Period, the Agent
determines that deposits in Dollars (in the applicable amounts) are not being
offered in the relevant market for such Interest Period, or the Required Banks
advise the Agent that the Adjusted LIBOR Rate, as determined by the Agent, will
not adequately and fairly reflect the cost to such Banks of funding the relevant
Euro-Dollar Rate Loans for such Interest Period, then, the Agent shall forthwith
give notice thereof
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to the Borrower and the Banks, whereupon until the Agent notifies the Borrower
that the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make the Euro-Dollar Rate Loans specified in such
notice shall be suspended. Unless the Borrower notifies the Agent at least two
(2) Domestic Business days before the date of any Borrowing of such Euro-Dollar
Rate Loans for which a Notice of Borrowing has previously been given that it
elects not to borrow on such date, such Borrowing shall instead be made as a
Base Rate Borrowing.
SECTION 8.2. Illegality.
If, after the date hereof, the adoption of any applicable law, rule or
regulation, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof (any such
agency being referred to as an "Authority" and any such event being referred to
as a "Change of Law"), or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or its Lending
Office) to make, maintain or fund its Euro-Dollar Rate Loans and such Bank shall
so notify the Agent, the Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Rate Loans shall be suspended.
Before giving any notice to the Agent pursuant to this Section, such Bank shall
designate a different Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank, in any respect deemed material by such Bank. If
such Bank shall determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Rate Loans to maturity and shall so specify
in such notice, the Borrower shall immediately prepay in full the then
outstanding principal amount of each Euro-Dollar Rate Loan of such Bank,
together with accrued interest thereon. Concurrently with prepaying each such
Euro-Dollar Rate Loan, the Borrower shall borrow, pursuant to Section 2.2.3, a
Base Rate Loan in an equal principal amount from such Bank (on which interest
and principal shall be payable contemporaneously with the related Euro-Dollar
Rate Loans of the other Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.3. Increased Cost and Reduced Return.
8.3.1 Change of Law. If after the date hereof, a Change of Law or
compliance by any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority either: (i) shall
subject any Bank (or its Lending Office) to any tax, duty or other charge with
respect to its Revolving Loans, its Note or its obligation to make Revolving
Loans, or shall change the basis of taxation of payments to any Bank (or its
Lending Office) of the principal of or interest on its Revolving Loans or any
other amounts due under this Agreement in respect of its Revolving Loans or its
obligation to make Revolving Loans (except for changes in the rate of tax on the
overall net income of such Bank or its Lending Office imposed by the
jurisdiction in which such Bank's principal executive office or Lending Office
is located); or (ii)
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shall impose, modify or deem applicable any reserve, special deposit insurance
or similar requirement (including, without limitation, any such requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
any such requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended by,
any Bank (or its Lending Office); or (iii) shall impose on any Bank (or its
Lending Office) or the London Interbank Market any other similar condition
affecting its Revolving Loans, its Notes or its obligation to make Revolving
Loans; and the result of any of the foregoing is to increase the cost to such
Bank (or its Lending Office) of making or maintaining any Revolving Loan, or to
reduce the amount of any such received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect thereto, by
an amount deemed by such Bank to be material, then, within fifteen (15) days
after demand by such Bank (with a copy to the Agent), the Borrower shall pay to
such Bank such additional amount or amounts as will compensate such Bank for
such increased cost or reduction.
8.3.2 Capital Adequacy. If any Bank shall have determined that after the
date hereof the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any Authority, has or would have the effect of reducing the
rate of return on such Bank's capital as a consequence of its obligations
hereunder to a level below that which such Bank could have achieved but for such
adoption, change or compliance (taking into consideration such Bank's policies
with respect to capital adequacy), by an amount deemed by such Bank to be
material, then from time to time, within fifteen (15) days after demand by such
Bank, the Borrower shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction.
8.3.3 Notice of Determination. Each Bank will promptly notify the Borrower
and the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank to compensation pursuant to this Section
and will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank, in any respect
deemed material by such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
8.3.4 Assignees Covered. The provisions of this Section 8.3 shall be
applicable with respect to any Assignee or other Transferee (excluding any
Participants), and any calculations required by such provisions shall be made
based upon the circumstances of such Assignee or other Transferee.
SECTION 8.4. Base Rate Loans Substituted for Affected Euro-Dollar Rate Loans.
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If (i) the obligation of any Bank to make or maintain Euro-Dollar Rate
Loans has been suspended pursuant to Section 8.2 or (ii) any Bank has demanded
compensation under Section 8.3.1, and the Borrower shall, by at least five (5)
Euro-Dollar Business Days' prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply: (i) all
Revolving Loans which would otherwise be made by such Bank as Euro-Dollar Rate
Loans, shall be made instead as Base Rate Loans (in all cases interest and
principal on such Revolving Loans shall be payable contemporaneously with the
related Euro-Dollar Rate Loans of the other Banks), and (ii) after each of its
Euro-Dollar Rate Loans has been repaid, all payments of principal which would
otherwise be applied to repay such Euro-Dollar Rate Loans shall be applied to
repay its Base Rate Loans instead.
SECTION 8.5. Replacement of a Lender.
In addition to the foregoing, if (i) the obligation of any Bank (but not
all Banks) to make or maintain Euro-Dollar Rate Loans has been suspended
pursuant to Section 8.2 or (ii) any Bank (but not all Banks) has demanded
compensation under Section 8.3, then, in either such case, the Borrower shall
have the right, at its option, upon giving at least five (5) Euro-Dollar
Business Days' prior notice to such Bank through the Agent, either: (i)
notwithstanding any term of Section 2.7.3 to the contrary, to reduce the
Commitment of such Bank to zero, in which case the Borrower shall reduce, by
repayment or prepayment, as the case may be, its Borrowings from such Bank to
zero effective upon such Commitment reduction becoming effective, and the
Commitment of each remaining Bank shall remained unchanged; or (ii) to obtain
one or more Banks or Assignees willing to replace such Bank, in which case the
Bank which is being replaced shall execute and deliver to such Bank or Assignee
an Assignment and Acceptance in accordance with Section 9.8.3 with respect to
such Bank's entire interest under this Agreement and the Notes.
SECTION 8.6. Compensation.
Upon the request of any Bank, delivered to the Borrower and the Agent, the
Borrower shall pay to such Bank such amount or amounts as shall compensate such
Bank for any loss, cost or expense incurred by such Bank (in connection with the
relevant Interest Period) as a result of: (i) any payment or prepayment (whether
pursuant to Section 8.2 or otherwise) of a Euro-Dollar Rate Loan on a date other
than the last day of an Interest Period for such Euro-Dollar Rate Loan; or (ii)
any failure by the Borrower to prepay a Euro-Dollar Rate Loan on the date for
such prepayment specified in the relevant notice of prepayment hereunder; or
(iii) any failure by the Borrower to borrow a Euro-Dollar Rate Loan on the date
for the Euro-Dollar Borrowing of which such Euro- Dollar Rate Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.2. Such compensation shall include, without limitation, an amount equal to the
excess, if any, of (x) the amount of interest which would have accrued on the
amount so paid or prepaid or not prepaid or borrowed for the period from the
date of such payment, prepayment or failure to prepay or borrow to the last day
of the then current Interest Period for such Euro-Dollar Rate Loan (or, in the
case of a failure to prepay or borrow, the Interest Period for such Euro-Dollar
Rate Loan
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which would have commenced on the date of such failure to prepay or borrow) at
the applicable rate of interest for such Euro-Dollar Rate Loan provided for
herein (excluding, however, therefrom the amount thereof attributable to the
imposition of the Applicable Margin) over (y) the amount of interest (as
reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London Interbank Market.
ARTICLE 9. MISCELLANEOUS
SECTION 9.1. Notices.
All notices, requests and other communications to any party hereunder or
under any Loan Document shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth on the signature pages hereof or such other address or
telecopier number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section and the appropriate confirmation is
received, (ii) if given by mail, seventy-two (72) hours after such communication
is deposited in the United States mails with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the Agent under
Article 2 or Article 8 shall not be effective until received.
SECTION 9.2. No Waivers.
No failure or delay by the Agent or any Bank in exercising any right, power
or privilege hereunder or under any Note shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
SECTION 9.3. Expenses; Documentary Taxes.
The Borrower shall pay (i) all out-of-pocket expenses of the Agent,
including fees and disbursements of special counsel for the Banks and the Agent,
in connection with the preparation of this Agreement and the other Loan
Documents, any waiver or consent hereunder or thereunder or any amendment hereof
or thereof or any Default or alleged Default hereunder or thereunder and (ii) if
a Default occurs, all out-of-pocket expenses incurred by the Agent and any Bank,
including fees and disbursements of counsel (including a reasonable allocation
of the cost of internal counsel), in connection with such Default and collection
and other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement, the Notes and other Loan
Documents. The Borrower shall indemnify the Agent and each Bank against any
transfer
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taxes, documentary taxes, assessments or charges made by any Authority by reason
of the execution and delivery of this Agreement, the Notes or the other Loan
Documents.
SECTION 9.4. Indemnification.
The Borrower shall indemnify the Agent, the Banks and each affiliate
thereof and their respective directors, officers, employees and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by any
Bank hereunder or breach by the Borrower of this Agreement, the Notes or any
other Loan Document or from any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Agent and each Bank, and each
affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross negligence or willful misconduct of the Person to be indemnified. The
indemnification provisions (including, without limitation, provisions for
default interest, to the extent that this Section 9.4 might be construed as
duplicating the Borrower's obligation to pay interest at the Default Rate as
required elsewhere in this Agreement) set forth in this Section 9.4 are meant to
be without duplication of any other indemnification provisions set forth in this
Agreement.
SECTION 9.5. Sharing of Setoffs.
Each Bank agrees that if it shall, by exercising any right of setoff or
counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest owing with respect to the Note held by it which
is greater than the proportion received by any other Bank in respect of the
aggregate amount of all principal and interest owing with respect to the Note
held by such other Bank, the Bank receiving such proportionately greater payment
shall purchase such participations in the Notes held by the other Banks owing to
such other Banks, and such other adjustments shall be made, as may be required
so that all such payments of principal and interest with respect to the Notes
held by the Banks owing to such other Banks shall be shared by the Banks pro
rata; provided that (i) nothing in this Section shall impair the right of any
Bank to exercise any right of setoff or counterclaim it may have and to apply
the amount subject to such exercise to the payment of indebtedness of the
Borrower other than its indebtedness under the Notes, and (ii) if all or any
portion of such payment received by the purchasing Bank is thereafter recovered
from such purchasing Bank, such purchase from each other Bank shall be rescinded
and such other Bank shall repay to the purchasing Bank the purchase price of
such participation to the extent of such recovery together with an amount equal
to such other Bank's ratable share (according to the proportion of (x) the
amount of such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. The
Borrower agrees, to the fullest extent it may effectively do so under applicable
law, that any holder of a participation in a Note, acquired pursuant
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to the foregoing arrangements, may exercise rights of setoff or counterclaim and
other rights with respect to such participation as fully as if such holder of a
participation were a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.6. Amendments and Waivers.
Any provision of this Agreement, the Notes or any other Loan Documents may
be amended or waived if, but only if, such amendment or waiver is in writing and
is signed by the Borrower and the Required Banks (and, if the rights or duties
of the Agent are affected thereby, by the Agent); provided that, no such
amendment or waiver shall, unless signed by all Banks, (i) except as otherwise
provided in Section 8.5, change the Commitment of any Bank or subject any Bank
to any additional obligation, (ii) change the principal of or rate of interest
on any Revolving Loan or any fees or other amounts payable hereunder, (iii)
change the date fixed for any payment of principal of or interest on any
Revolving Loan or any fees hereunder, (iv) change the amount of principal,
interest, fees or other amounts payable hereunder due on any date fixed for the
payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid amount of the Notes, or the percentage of Banks, which shall be
required for the Banks or any of them to take any action under this Section or
any other provision of this Agreement, (vi) change the manner of application of
any payments made under this Agreement or the Notes, (vii) release or substitute
all or any substantial part of the collateral (if any) held as security for the
Revolving Loans, (viii) release any Guarantee given to support payment of the
Revolving Loans; (ix) change any terms of clause (vii) of Section 5.19; or (x)
change any terms of Section 5.20. In connection with the foregoing, the Borrower
will not solicit, request or negotiate for or with respect to any proposed
waiver or amendment of any of the provisions of this Agreement unless each Bank
shall be informed thereof by the Borrower or the Agent and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower with
sufficient information to enable it to make an informed decision with respect
thereto. Executed or true and correct copies of any waiver or consent effected
pursuant to the provisions of this Agreement shall be delivered by the requisite
percentage of Banks. The Borrower will not, directly or indirectly, pay or cause
to be paid any remuneration, whether by way of supplemental or additional
interest, fee or otherwise, to any Bank (in its capacity as a Bank) as
consideration for or as an inducement to the entering into by such Bank of any
waiver or amendment of any of the terms and provisions of this Agreement unless
such remuneration is concurrently paid, on the same terms, ratably to all such
Banks.
SECTION 9.7. No Margin Stock Collateral.
Each of the Banks represents to the Agent, the Borrower and each of the
other Banks that it in good faith is not, (i) directly or indirectly (by
negative pledge or otherwise), relying upon any Margin Stock as collateral in
the extension or maintenance of the credit provided for in this Agreement or
(ii) entering into this Agreement with an immediate intention to resell its
Commitment or Revolving Loans.
SECTION 9.8. Successors and Assigns.
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9.8.1 No Assignment by Borrower. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that the Borrower may not assign or otherwise
transfer any of its rights under this Agreement.
9.8.2 Participation. Any Bank may, without the consent of the Borrower, at
any time sell to one or more Persons (each a "Participant") participating
interests in any Revolving Loan owing to such Bank, any Note held by such Bank,
any Commitment of such Bank hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, and the Borrower and the Agent shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. In no event shall a Bank that sells a
participation be obligated to the Participant to take or refrain from taking any
action hereunder except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to (i) the change
of any date fixed for the payment of principal of or interest on the related
Revolving Loan or Revolving Loans, (ii) the change of the amounts of any
principal, interest or fees due on any date fixed for the payment thereof with
respect to the related Revolving Loan or Revolving Loans, (iii) the change of
the principal or the related Revolving Loan or Revolving Loans, (iv) any change
in the rate at which either interest is payable thereon or (if the Participant
is entitled to any part thereof) a commitment fee is payable hereunder from the
rate at which the Participant is entitled to receive interest or a commitment
fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Revolving Loans, or (vi) the release of any Guarantee given to
support payment of the Revolving Loans. Each Bank selling a participating
interest in any Revolving Loan, Note, Commitment or other interest under this
Agreement shall, within ten (10) Domestic Business Days of such sale, provide
the Borrower and the Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant. Except as otherwise expressly provided in Article 8, the Agent, the
Banks and the Borrower agree that each Participant shall be entitled to the
benefits of Article 8 with respect to its participation in Revolving Loans
outstanding from time to time, but only to the extent that such Bank which sold
the relevant participation would have been entitled thereto pursuant to the
terms of this Agreement.
9.8.3 Assignments. Any Bank may at any time assign to one or more banks or
financial institutions (each an "Assignee") all, or a proportionate part of all,
of its rights and obligations under this Agreement and the Notes, and such
Assignee shall assume all such rights and obligations, pursuant to an Assignment
and Acceptance, executed by such Assignee, such transferor Bank and the Agent
(and, in the case of an Assignee that is not then a Bank, by the Borrower);
provided that (i) no interest may be sold by a Bank pursuant to this Section
unless the Assignee shall agree to assume ratably equivalent portions of the
transferor Bank's Commitment, (ii) the amount of the Commitment of the
transferor Bank subject to such assignment (determined as of the effective date
of the assignment) shall be equal to at least Five Million Dollars ($5,000,000),
(iii) no interest
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may be sold by a Bank pursuant to this Section to any Assignee that is not then
a Bank or an Affiliate of a Bank without the consent of the Borrower and the
Agent (which consent shall not be unreasonably withheld), except after the
occurrence of, and during the continuance of, an Event of Default, and (iv)
during the term of this Agreement, a Bank may not have more than two Assignees
that are not then Banks at any one time. Upon (A) execution of the Assignment
and Acceptance by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the Assignment and
Acceptance of the Borrower and the Agent, (C) payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, and (D) payment of a processing and
recordation fee of Two Thousand Five Hundred Dollars ($2,500) to the Agent, such
Assignee shall for all purposes be a Bank party to this Agreement and shall have
all the rights and obligations of a Bank under this Agreement to the same extent
as if it were an original party hereto with a Commitment as set forth in such
instrument of assumption, and the transferor Bank shall be released from its
future obligations hereunder to a corresponding extent, and no further consent
or action by the Borrower, the Banks or the Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this Section 9.8.3, the
transferor Bank, the Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to such Assignee.
9.8.4 Disclosures. Subject to the provisions of Section 9.9, the Borrower
authorizes each Bank to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee any and all
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
9.8.5 Status of Transferee. No Transferee shall be entitled to receive any
greater payment under Section 8.3 than the transferor Bank would have been
entitled to receive with respect to the rights transferred, unless such transfer
is made with the Borrower's prior written consent or by reason of the provisions
of Section 8.2 or 8.3 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
SECTION 9.9. Confidentiality.
Each Bank and the Agent agrees to exercise its best efforts (and, in any
event, with at least the same degree of care as it ordinarily exercises with
respect to confidential information of its other customers) to keep any
information delivered or made available by the Borrower to it, including,
without limitation, information obtained by the Agent or such Bank by reason of
a visit or investigation by any Person contemplated in Section 5.2, confidential
from any one other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Revolving Loans; provided, however that nothing herein shall
prevent any Bank from disclosing such information (i) to the Agent or any other
Bank, (ii) upon the order of any court or administrative agency, (iii) upon the
request or demand of
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any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed other than by an act or omission of the Agent
or any Bank except as permitted herein, (v) to the extent reasonably required in
connection with any litigation (with respect to this Agreement, any of the other
Loan Documents, in connection with any of the foregoing, or any other
obligations of the Borrower or any Subsidiary owing to the Agent or any Bank) to
which the Agent, any Bank or their respective Affiliates may be a party, (vi) to
the extent reasonably required in connection with the exercise of any remedy
hereunder, (vii) to such Bank's legal counsel and independent auditors and
(viii) to any actual or proposed Participant, Assignee or other Transferee of
all or part of its rights hereunder which has agreed in writing to be bound by
the provisions of this Section 9.9.
SECTION 9.10. Representation by Banks.
Each Bank hereby represents that it is a commercial lender or financial
institution which makes Revolving Loans in the ordinary course of its business
and that it will make its Revolving Loans hereunder for its own account in the
ordinary course of such business; provided, however that, subject to Section
9.8, the disposition of a Note or the Notes held by that Bank shall at all times
be within its exclusive control.
SECTION 9.11. Obligations Several.
The obligations of each Bank hereunder are several, and no Bank shall be
responsible for the obligations or commitment of any other Bank hereunder.
Nothing contained in this Agreement and no action taken by Banks pursuant hereto
shall be deemed to constitute the Banks to be a partnership, an association, a
joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Bank shall be a separate and independent debt, and each Bank
shall be entitled to protect and enforce its rights arising out of this
Agreement or any other Loan Document and it shall not be necessary for any other
Bank to be joined as an additional party in any proceeding for such purpose.
SECTION 9.12. GEORGIA LAW.
THIS AGREEMENT, EACH NOTE AND EACH OTHER LOAN DOCUMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF GEORGIA.
SECTION 9.13. Interpretation.
No provision of this Agreement or any of the other Loan Documents shall be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured or dictated such provision.
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SECTION 9.14. CONSENT TO JURISDICTION.
THE BORROWER, AND EACH OF THE BANKS AND THE AGENT IRREVOCABLY (A) SUBMITS
TO THE NONEXCLUSIVE PERSONAL JURISDICTION IN THE STATE OF GEORGIA, THE COURTS
THEREOF AND THE UNITED STATES DISTRICT COURTS SITTING THEREIN, FOR THE
ENFORCEMENT OF THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS, (B)
WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY JURISDICTION TO OBJECT
ON ANY BASIS (INCLUDING, WITHOUT LIMITATION, INCONVENIENCE OF FORUM) TO
JURISDICTION OR VENUE WITHIN THE STATE OF GEORGIA FOR THE PURPOSE OF LITIGATION
TO ENFORCE THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, AND (C) AGREES
THAT SERVICE OF PROCESS MAY BE MADE UPON IT IN THE MANNER PRESCRIBED IN SECTION
9.1 FOR THE GIVING OF NOTICE TO THE BORROWER. NOTHING HEREIN CONTAINED, HOWEVER,
SHALL PREVENT THE AGENT FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS
AGAINST ANY SECURITY AND AGAINST THE BORROWER PERSONALLY, AND AGAINST ANY ASSETS
OF THE BORROWER, WITHIN ANY OTHER STATE OR JURISDICTION.
SECTION 9.15. Counterparts.
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
SECTION 9.16. Survival.
All representations, warranties and covenants made herein shall survive the
execution and delivery of all of the Loan Documents. The terms and provisions of
this Agreement shall continue in full force and effect until the payment of the
Notes and termination of the Commitments.
SECTION 9.17. Entire Agreement; Amendment; Severability.
This Agreement shall constitute the entire agreement among the parties
hereto with respect to the subject matter hereof. Neither this Agreement nor any
provision hereof may be changed, waived, discharged, modified or terminated
orally, but only by an instrument in writing in accordance with Section 9.6. If
any provision of any of the Loan Documents or the application thereof to any
party thereto or circumstances shall be invalid or unenforceable to any extent,
the remainder of such Loan Documents and the application of such provisions to
any other party thereto or circumstance shall not be affected thereby and shall
be enforced to the greatest extent permitted by law.
SECTION 9.18. TIME OF THE ESSENCE.
TIME IS OF THE ESSENCE IN THIS AGREEMENT, THE NOTES AND THE OTHER LOAN
DOCUMENTS.
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<PAGE>
SECTION 9.19. Banks Not a Joint Venturer.
Neither this Agreement nor any agreements, instruments, documents or
transactions contemplated hereby (including the Loan Documents), shall in any
respect be interpreted, deemed or construed as making any Bank or the Agent a
partner or joint venturer with the Borrower or as creating any similar
relationship or entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers, as of the
day and year first above written.
"BORROWER"
APPLE SOUTH, INC.
(SEAL)
By:_________________________________
Erich J. Booth, Chief Financial
Officer and Treasurer
Attest:_____________________________
Tonya Benjamin, Assistant Secretary
Apple South, Inc.
Corporate Headquarters
Hancock at Washington
Madison, Georgia 30650
Attn: Erich J. Booth,
Chief Financial Officer
Telecopier Number: (706) 342-4057
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<PAGE>
"BANKS"
WACHOVIA BANK, NATIONAL
ASSOCIATION, as the Agent and as
a Bank
(SEAL)
By:________________________________
W. Tompkins Rison, Vice President
Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street, N.E.
30th Floor
Atlanta, Georgia 30303-1757
Attention: Georgia Corporate
Commercial Group
Telecopier Number: (404) 332-6920
Commitment Amount:
$55,000,000
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<PAGE>
SUNTRUST BANK, ATLANTA,
as a Bank
(SEAL)
By:________________________________
Name:___________________________
Title:____________________________
By:________________________________
Name:___________________________
Title:____________________________
Lending Office:
SunTrust Bank, Atlanta
25 Park Place
23rd Floor
Atlanta, Georgia 30302
Telecopier Number: (404) 588-8833
Commitment Amount:
$25,000,000
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<PAGE>
BANKBOSTON, N.A.,
as a Bank
(SEAL)
By:________________________________
Debra L. Zurka, Director
Lending Office:
Large Corporate-Restaurant Division
100 Federal Street
Mail Stop 01-09-05
Boston, Massachusetts 02110
Telecopier Number: (617) 434-0637
Commitment Amount:
$10,000,000
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<PAGE>
COMERICA BANK,
as a Bank
(SEAL)
By:________________________________
Name:___________________________
Title:____________________________
Lending Office:
Comerica Bank
500 Woodward Avenue
9th Floor, MC 3280
Detroit, Michigan 48226
Telecopier Number (313) 222-3330
Commitment Amount:
$10,000,000
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<PAGE>
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE
Dated ________ __, 19__
Reference is made to the Credit Agreement dated as of April 1, 1998
(together with all amendments and modifications thereto, the "Credit Agreement"
among Apple South, Inc., a Georgia corporation (the "Borrower"), the Banks (as
defined in the Credit Agreement) and Wachovia Bank, National Association, as
Agent (the "Agent"). Terms defined in the Credit Agreement are used herein with
the same meaning.
________________________________________ (the "Assignor") and
________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, a ________% interest in and to
all of the Assignor's rights and obligations under the Credit Agreement as of
the Effective Date (as defined below) (including, without limitation, a _____%
interest (which on the Effective Date hereof is $__________) in the Assignor's
Commitment and a _____ interest (which on the Effective Date hereof is
$__________) in the Revolving Loans owing to the Assignor (which on the
Effective Date hereof is $__________).
2. The Assignor (i) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder, that such interest is free and clear of any adverse claim and that
as of the date hereof its Commitment (without giving effect to assignments
thereof which have not yet become effective) is $__________ and the aggregate
outstanding principal amount of Revolving Loans owing to it (without giving
effect to assignments thereof which have not yet become effective) is
$__________; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement or any other instrument or document furnished pursuant thereto;
and (iii) attaches the Note(s) referred to in paragraph 1 above and requests
that the Agent exchange such Note(s) for [a new Note dated __________, ____ in
the principal amount of $__________ payable to the order of the Assignee) (new
Notes as follows: a Note dated
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<PAGE>
__________, ____ in the principal amount of $__________ payable to the order of
the Assignor and a Note dated __________, ____ in the principal amount of
$__________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.4.1 thereof (or any more recent financial statements of the Borrower
delivered pursuant to Sections 5.1.1 or 5.1.2 thereof) and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is a bank or financial
institution; (iv) appoints and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi) specifies as its
Lending Office (and address for notices) the office set forth beneath its name
on the signature pages hereof, (vii) represents and warrants that the execution,
delivery and performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary corporate
action, and (viii) attaches the forms prescribed by the Internal Revenue Service
of the United States certifying as to the Assignee's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to the Assignee under the Credit Agreement and the Notes or
such other documents as are necessary to indicate that all such payments are
subject to such taxes at a rate reduced by an applicable tax treaty.
4. The Effective Date for this Assignment and Acceptance shall be (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for execution and acceptance by the Agent (and to
the Borrower for execution by the Borrower. If Assignee is organized under the
laws of a jurisdiction outside the United States.
5. Upon such execution and acceptance by the Agent and execution by the
Borrower, if the Assignee is not a Bank prior to the Effective Date, from and
after the Effective Date, (i) the Assignee shall be a party to the Credit
Agreement and, to the extent rights and obligations have been transferred to it
by this Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent its rights and obligations
have been transferred to the Assignee by this Assignment and Acceptance,
relinquish its rights (other than under Section 8.3 of the Credit Agreement) and
be released from its obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Agent and execution by the
Borrower, if the Assignee is not a Bank prior to the Effective Date, from and
after the Effective Date, the Agent shall make all payments in respect of the
interest assigned hereby to the Assignee. The
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<PAGE>
Assignor and Assignee shall make all appropriate adjustments in payments for
periods prior to such acceptance by the Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
Lending Office:
[Address]
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Agent
By:
Title:
APPLE SOUTH, INC.
If the Assignee is not a
Bank prior to the Effective Date.
By:
Title:
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<PAGE>
EXHIBIT B
FORM OF REVOLVING LOAN NOTE
REVOLVING LOAN NOTE
Atlanta, Georgia
April 1, 1998
For value received, APPLE SOUTH, INC., a Georgia corporation (the
"Borrower"), promises to pay to the order of_____________________________ (the
"Bank"), for the account of its Lending Office, the principal sum of up to
____________ Million Dollars ($_________), or such lesser amount as shall equal
the unpaid principal amount of each Revolving Loan made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates and in
the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Revolving Loan Note on the dates
and at the rate or rates provided for in the Credit Agreement referred to below.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
National Association, 191 Peachtree Street, N.E., Atlanta, Georgia 30303-1757,
or such other address as may be specified from time to time pursuant to the
Credit Agreement.
All Revolving Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto, and all repayments of
the principal thereof may be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Borrower hereunder or under the Credit Agreement.
This Revolving Loan Note is one of the Notes referred to in the Credit
Agreement dated as of April 1, 1998, among the Borrower, the Banks listed on the
signature pages thereof and Wachovia Bank, National Association, as Agent (as
the same may be amended and modified from time to time, the "Credit Agreement").
Terms defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for the provisions for the optional
and mandatory prepayment and the repayment hereof and the acceleration of the
maturity hereof.
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<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Revolving Loan Note to be
duly executed, under seal, by its duly authorized officer as of the day and year
first above written.
APPLE SOUTH, INC. (SEAL)
By:_______________________________
Erich J. Booth, Chief Financial
Officer and Treasurer
Attest:___________________________
Tonya Benjamin, Assistant
Secretary
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<PAGE>
Revolving Loan Note (cont'd)
REVOLVING LOANS AND PAYMENTS OF PRINCIPAL
Base Rate Amount Amount of
or Euro- of Principal Maturity Notation
Date Dollar Loan Revolving Loan Repaid Date Made By
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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<PAGE>
EXHIBIT C
FORM OF NOTICE OF BORROWING
NOTICE OF BORROWING
________________, 199_
Wachovia Bank, National
Association, as Agent
191 Peachtree Street, N.W.
Atlanta, Georgia 30303-1757
Attention: Commercial Group
Re: Credit Agreement (as amended or modified from time to time,
the "Credit Agreement") dated as of April 1, 1998, by and
among Apple South, Inc., Wachovia Bank, National Association,
as a Bank and as the Agent, and the other Banks from time to
time party thereto.
Ladies and Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.2 of
the Credit Agreement.
The Borrower hereby requests a Borrowing in the aggregate principal
amount of $________________ to be made on ______________, 199__, and for
interest to accrue thereon at the rate established by the Credit Agreement for
(check one):
1. _____ Base Rate Loans
2. _____ Euro-Dollar Rate Loans
The duration of the Interest Period with respect thereto in the case of
Euro-Dollar Rate Loans shall be (check one):
1. _____ 1 month
2. _____ 2 months
3. _____ 3 months
4. _____ 6 months
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<PAGE>
If, immediately after the Borrowing requested herein, the outstanding
balance of the Revolving Loans following such Borrowing will be in excess of the
aggregate outstanding principal balance of the Revolving Loans immediately
preceding such Borrowing, the Borrower hereby represents and warrants that on
the date the Borrowing requested hereunder is made (both before and after giving
effect to the making of such and after giving effect to the application,
directly or indirectly, of the proceeds thereof):
(a) no Default has occurred and is continuing; and
(b) the representations and warranties of the Borrower
contained in Article IV of the Credit Agreement are true.
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer as of this ____ day of __________,
199__.
APPLE SOUTH, INC.
By:
Title:
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<PAGE>
EXHIBIT D
FORM OF OPINION OF
COUNSEL FOR THE BORROWER
April 1, 1998
To the Banks and the Agent
Referred to below
c/o Wachovia Bank,
National Association, as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Ladies and Gentlemen:
We have acted as legal counsel to Apple South, Inc. (the
"Borrower") in connection with the Credit Agreement (the "Credit Agreement")
dated as of April 1, 1998, among the Borrower, the Banks from time to time
parties thereto, and Wachovia Bank, National Association, as Agent. Terms
defined in the Credit Agreement are used herein as therein defined.
We have examined original or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion. We have assumed for purposes of our opinions set
forth below that the executed and delivery of the Credit Agreement by each Bank
and by the Agent have been duly authorized by each Bank and by the Agent.
When facts relevant to these opinions were not independently
established by us, we have relied upon the certificate of the Secretary of the
Borrower. We have assumed the genuineness of all signatures, the authenticity of
all documents delivered to us as originals, the legal capacity of natural
persons, the conformity to original documents of all documents submitted to us
as certified or photostatic copies and the authenticity of the originals of such
letter documents.
Upon the basis of the foregoing, and subject to the further
qualifications and assumptions set forth below, we are of the opinion that:
1. The Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Georgia and has all
corporate powers required to carry on its business as now conducted.
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<PAGE>
2. The execution, delivery and performance by the Borrower of
the Credit Agreement, the Notes and the Other Agreements (i) are within the
Borrower's corporate powers, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or in respect of, or filing with,
any governmental body, agency or official, (iv) do not contravene, or constitute
a default under, any provision of (A) applicable law or regulation or (B) the
certificate of incorporation or by-laws of the Borrower or (C) any material
judgment, injunction, order or decree which to our knowledge is binding upon the
Borrower or (D) any material indenture, mortgage, deed of trust, loan agreement
or other financial agreement or instrument (but not including leases) known to
us which to our knowledge is binding on the Borrower and (V) do not, to our
knowledge, result in the creation or imposition of any Lien on any asset of the
Borrower.
3. The Credit Agreement, the Notes and the Other Agreements
constitutes a valid and binding agreement of the Borrower, enforceable against
the Borrower in accordance with its terms, except as such enforceability may be
limited: (i) by bankruptcy, insolvency, reorganization, fraudulent conveyance,
voidable preference, moratorium or similar laws applicable to creditors' rights
or the collection of debtors' obligations generally and (ii) by general
principles of equity (including, without limitation, the availability of
equitable remedies).
4. To our knowledge, there is no action, suit or proceeding
pending, or threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement or any Note.
5. The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
We are qualified to practice law in the State of Georgia and
do not purport to be experts on any laws other than the federal laws of the
United States and the laws of the State of Georgia, and this opinion is rendered
only with respect to such laws. We have made no investigation of the laws of any
other jurisdiction.
Very truly yours,
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<PAGE>
EXHIBIT E
FORM OF CLOSING CERTIFICATE
APPLE SOUTH, INC.
CLOSING CERTIFICATE
Reference is made to the Credit Agreement ("the Credit Agreement")
dated as of April 1, 1998, among Apple South, Inc., the Banks listed therein,
and Wachovia Bank, N.A., as Agent. Capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.1.4 of the Credit Agreement, the undersigned,
Erich J. Booth, the duly authorized Chief Financial Officer and Treasurer of
Apple South, Inc., in his aforesaid official capacity and not personally, hereby
certifies to the Agent and the Banks on behalf of the Borrower that (i) no
Default has occurred and is continuing as of the date hereof, and (ii) the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this Certificate in
his aforesaid official capacity as Chief Financial Officer and not personally as
of April 1, 1998.
By:
Erich J. Booth, as Chief
Financial Officer and
Treasurer, for and on
behalf of Apple
South, Inc.
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<PAGE>
EXHIBIT F
FORM OF SECRETARY'S CERTIFICATE
SECRETARY'S CERTIFICATE
The undersigned, being the duly elected, qualified and acting Secretary
of APPLE SOUTH, INC., a Georgia corporation (the "Corporation"), and, in such
capacity, being duly authorized and empowered to issue this certificate on its
behalf, does hereby certify that:
1. On or prior to the date hereof, by unanimous consent of the Board of
Directors of the Corporation, obtained in accordance with and pursuant to the
Articles of Incorporation and By-Laws of the Corporation, the resolutions set
forth and described on Exhibit A were unanimously adopted and, being the only
effective resolutions adopted by the Board of Directors of this Corporation (or
any committee thereof) with respect to the matters referred to therein, remain
unmodified and in full force and effect as of the date hereof;
2. The following are the names of the duly elected officers of this
Corporation now holding the respective offices indicated, and that the signature
set forth opposite the name of each such officer is the true and genuine
signature of such officer (complete as applicable):
Erich J. Booth, Chief Financial _____________________________
Officer and Treasurer (Signature)
Tonya Benjamin, Assistant Secretary _____________________________
(Signature)
IN WITNESS WHEREOF, I have hereunto set my hand as Assistant Secretary
and the seal of the Corporation as of the 1st day of April, 1998.
[CORPORATE SEAL] ________________________________
Tonya Benjamin, Assistant Secretary
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<PAGE>
EXHIBIT G
FORM OF COMPLIANCE CERTIFICATE
COMPLIANCE CERTIFICATE
Reference is made to that certain Credit Agreement dated as of April 1,
1998 (as modified and supplemented and in effect from time to time, the "Credit
Agreement") among Apple South, Inc., the Banks from time to time party thereto,
and Wachovia Bank, National Association, as a Bank and as Agent as ascribed
thereto in the Credit Agreement.
Pursuant to Section 5.1.3 of the Credit Agreement, the undersigned, the
[Chief Financial Officer/Chief Accounting Officer] of the Borrower, hereby
certifies that (i) attached hereto as Annex 1 are the true and accurate
calculations required to establish whether the Borrower was in compliance with
Sections 5.3, 5.4, 5.5, 5.6 and 5.19 of the Credit Agreement as of the end of
the Fiscal [Quarter/Year] ended __________, 19__, each determined in accordance
with the requirements of the Credit Agreement and (ii) [no Default exists on the
date hereof] [the following Defaults (including the details thereof) exist and
the Borrower is taking or proposes to take the following actions with respect
thereto]:
======================
======================
IN WITNESS WHEREOF, the undersigned has executed this Certificate in
his capacity as [Chief Financial Officer] and not personally as of the ____ day
of __________, 199___.
By:_________________________________
_______________________,
as _________________,
for and on behalf of
Apple South, Inc.
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<PAGE>
SCHEDULE 4.8
SUBSIDIARIES SCHEDULE
[TO BE COMPLETED BY APPLE SOUTH, INC.]
-1-
<PAGE>
SCHEDULE 5.7
DEBT SCHEDULE
[TO BE COMPLETED BY APPLE SOUTH, INC.]
FIRST AMENDMENT TO PARTICIPATION AGREEMENT
THIS FIRST AMENDMENT TO PARTICIPATION AGREEMENT (this "Amendment"), is
entered into as of March 27, 1998, among (i) APPLE SOUTH, INC., a corporation
organized and existing under the Laws of Georgia (herein, together with its
successors and assigns permitted hereunder, called the "Lessee"), (ii) FIRST
SECURITY BANK, NATIONAL ASSOCIATION, a national banking association ("First
Security"), not in its individual capacity except as expressly provided herein,
but solely as Owner Trustee under Apple South Trust No. 97-1 (herein in such
capacity, together with its successors and assigns permitted hereunder, called
the "Owner Trustee"), (iii) STI CREDIT CORPORATION, a Nevada corporation, as
assignee of SunTrust Bank, Atlanta, in its capacity as the holder of the
beneficial interest in the trust estate established under Apple South Trust No.
97-1 (in such capacity as of the date hereof, the "Holder", and together with
its successors and assigns permitted hereunder, called the "Holders"), (iv) the
financial institutions now parties to the Participation Agreement (as defined
below) (each herein in such capacity, together with its successors and assigns
permitted hereunder, called a "Lender" and collectively, the "Lenders"), and (v)
SUNTRUST BANK, ATLANTA, a banking corporation organized and existing under the
laws of Georgia, ("SunTrust"), as collateral agent and administrative agent for
the Lenders and the Holders (in such capacity, the "Administrative Agent").
W I T N E S S E T H
WHEREAS, the Lessee, the Owner Trustee, the Holder, the Lenders and the
Administrative Agent are parties to that certain Participation Agreement, dated
as of September 24, 1997 (the "Participation Agreement");
WHEREAS, the Lessee has requested that the Participation Agreement be
amended in connection with its divestiture of its Applebee's Neighborhood Bar &
Grill restaurants, and the parties hereto are willing to amend the Participation
Agreement on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the
parties hereby amend the Participation Agreement as follows:
A. DEFINITIONS
Unless the context otherwise requires, all capitalized terms used herein
and not otherwise defined herein shall have the meanings set forth in Appendix A
to the Participation Agreement for all purposes of this Amendment. The General
Provisions of Appendix A to the Participation Agreement are hereby incorporated
by reference herein.
1
<PAGE>
B. AMENDMENTS
1. Section 5.5 of the Participation Agreement is amended by replacing such
Section in its entirety with the following:
5.5 Fixed Charge Coverage Ratio.
Lessee's Fixed Charge Coverage Ratio, measured on a rolling four (4) Fiscal
Quarters' basis as of the end of each Fiscal Quarter, commencing with the Fiscal
Quarter ended closest to December 31, 1997, shall be (i) not less than 1.8:1.0
for the Fiscal Quarters ending closest to December 31, 1997, March 31, 1998 and
June 30, 1998, (ii) not less than 1.9:1.0 for the Fiscal Quarter ending closest
to September 30, 1998, and (iii) not less than 2.0:1.0 for each Fiscal Quarter
ending thereafter.
2. Section 5.6 of the Participation Agreement is amended by replacing such
Section in its entirety with the following:
5.6 Total Funded Debt/EBITDA Ratio.
The ratio which (i) the Total Funded Debt of the Lessee and its
Consolidated Subsidiaries at the end of any Fiscal Quarter, commencing with the
Fiscal Quarter ended closest to December 31, 1997, bears to (ii) EBITDA of the
Lessee and its Consolidated Subsidiaries, measured on a rolling four (4) Fiscal
Quarters' basis as of the end of such Fiscal Quarter, shall be (i) no more than
3.8:1.0 for the Fiscal Quarters ending closest to December 31, 1997 and March
31, 1998 and (ii) no more than 3.50:1.0 for each Fiscal Quarter ending
thereafter. In computing EBITDA in respect of the foregoing ratio, (a) any asset
or stock dispositions by the Lessee consisting of the sale of a business line,
segment or other group of related stores (including, particularly, for this
purpose, the Applebee's Spinoff) occurring within a Fiscal Quarter shall be
accounted for by reducing EBITDA by the individual EBITDA attributable to each
store within such group for such Fiscal Quarter and the three (3) preceding
Fiscal Quarters; and (b) any asset or stock acquisitions by the Lessee
consisting of the purchase of a business line, segment or other group of related
stores occurring within a Fiscal Quarter shall be accounted for by increasing
EBITDA by the individual EBITDA attributable to each store within such group for
such Fiscal Quarter and for the three (3) preceding Fiscal Quarters; in each
instance, on an historical basis, in a matter which the Lessee shall determine,
but subject to prior review with, and approval by, the Administrative Agent.
3. Section 5.8 of the Participation Agreement is amended by replacing such
Section in its entirety with the following:
2
<PAGE>
5.8 Maintenance of Existence.
Except as permitted in Section 5.10, the Lessee shall, and shall cause each
Subsidiary to, maintain its corporate existence and carry on its business in
substantially the same manner and in substantially the same fields as such
business is now carried on and maintained. Without limiting the generality of
the foregoing, the Lessee shall, and shall cause each Subsidiary to, maintain at
all times in full force and effect all Franchise Rights necessary to the
ownership, operation and development of all franchised restaurant business
conducted, or contemplated to be conducted, by the Lessee and such Subsidiaries,
except with respect to Voluntary Store Closings and except with respect to any
Applebee's Spinoff.
4. Section 5.10 of the Participation Agreement is amended by replacing such
Section in its entirety with the following:
5.10 Consolidations, Mergers and Sales of Assets.
The Lessee will not, nor will it permit any Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment, provided, however, that, subject at all times to
Section 5.11, the Lessee or any Subsidiary may merge with another Person (which
is not the Lessee or such Subsidiary) if (i) such Person was organized under the
laws of the United States of America or one of its states (ii) the Lessee or
such Subsidiary (as the case may be) is the corporation surviving such merger
and (iii) immediately after giving effect to such merger, no Lease Default shall
have occurred and be continuing; provided, further, that any Subsidiaries of the
Lessee may (i) merge or consolidate with each other or with the Lessee (so long
as the Lessee is the corporation surviving such merger), or (ii) sell assets to
each other or to the Lessee; and provided, further, that the Lessee may
consummate an Applebee's Spinoff if made in accordance with the terms set forth
in the definition thereof and provided that the Lessee complies with Section 2.9
of the Credit Agreement.
5. Section 5.11 of the Participation Agreement is amended by replacing
subsection (j) and (k) of such Section with the following:
(j) Reserved.
(k) Other Restaurant Concepts. Make investments in new restaurant concepts,
so long as the total amount of each such investment (either considered
individually or as part of a series of related, concurrent investments), does
not exceed ten percent (10%) of Lessee's consolidated total assets immediately
before such investment (or the last in a series of related, concurrent
investments) is made; or
3
<PAGE>
6. Section 5.11 of the Participation Agreement is further amended by
replacing the last two paragraphs of such Section with the following:
The Lessee shall notify the Administrative Agent from time to time, but not
less frequently than quarterly, or at any time at the Administrative Agent's
request, of the nature and amount of any investments made pursuant to clauses
(k) and (l) hereof which, individually or in the aggregate, exceed $100,000.
Notwithstanding anything in this Section 5.11 to the contrary, no
Subsidiary shall be required to comply with, and Lessee shall not be required to
cause any Subsidiary to comply with, any part of clause (g), (k) and (l) of this
Section 5.11 to the extent it would cause a violation of any term of the
Lessee's $125,000,000 9 3/4% Senior Notes due 2006 or the Prospectus Supplement
dated May 23, 1996 related thereto.
7. The Participation Agreement is further amended by adding the following
as a new Section 5.26:
5.26. Liquidity Facility
The Lessee shall maintain at all times a senior revolving credit facility
in a principal amount of at least $25,000,000, with a maturity date no shorter
than six months, on an unsecured basis with representations, warranties,
covenants and defaults that are no more restrictive than the representations,
warranties, covenants and defaults set forth in this Participation Agreement.
8. Appendix A of the Participation Agreement is amended by replacing the
definitions of "Credit Agreement" and "Franchisee Rights" with the following:
"Credit Agreement" shall mean that certain Second Amended and Restated
Credit Agreement dated as of March 1, 1998, among Lessee, Wachovia Bank,
National Association, as Agent, and the other banks and financial institutions
that are parties thereto, as the same may be amended, restated, and supplemented
from time to time, and any loan or credit agreement executed in connection with
the refinancing of all or any substantial portion of the indebtedness
outstanding under such Second Amended and Restated Credit Agreement, as such
loan or credit agreement may be amended, restated, and supplemented from time to
time.
"Franchise Rights" shall mean all rights, privileges and interests of
Lessee and its Consolidated Subsidiaries to own, operate and develop franchised
restaurants as a franchisee, whether now or hereafter existing, and whether with
respect to the operation of any "Applebee's" restaurants or otherwise.
9. Appendix A of the Participation Agreement is amended by deleting the
definition of "Cash Flow" and adding the following definitions in proper
alphabetical order:
4
<PAGE>
"Applebee's Spinoff" shall mean any sale or other disposition by the Lessee
of any of its Applebee's Neighborhood Grill & Bar restaurants to Applebee's
International, Inc. or to other third parties, all of which sales in the
aggregate shall result in the sale or other disposition by the Lessee of all, or
substantially all, of the Applebee's Neighborhood Grill & Bar restaurants owned
by the Lessee for an aggregate amount of not less than Three Hundred Fifty
Million Dollars ($350,000,000), in cash, each payment of which shall be made in
full upon the closing of the final sale for such respective transaction, with
all such sales to occur as soon as practicable, but in any event on or before
April 1, 1999.
"EBITDA" shall mean, for any fiscal period of the Lessee and its
Consolidated Subsidiaries, that amount equal to the sum, determined in
accordance with GAAP, of the Consolidated Net Income of the Lessee and its
Consolidated Subsidiaries for such period (considered without regard to any
extraordinary gains or extraordinary losses), plus, without duplication, and to
the extent deducted from revenue in determining Consolidated Net Income,
depreciation and amortization expense and any other non-cash charges for such
period, interest expense for such period and taxes for such period.
C. MISCELLANEOUS
1. The Holder, the Lenders and the Administrative Agent hereby consent to
the Owner Trustee executing and delivering to the Lessee the First Amendment to
Lease Agreement in the form attached hereto as Exhibit A. Pursuant to Section
10.1(a) of the Trust Agreement, the Holder authorizes and requests that the
Owner Trustee execute such First Amendment to Lease Agreement.
2. To induce the Holder and the Lenders to enter into this Amendment,
Lessee agrees to pay to the Administrative Agent, for the ratable benefit of the
Holder and the Lenders, a $17,500 amendment fee as a condition precedent to the
effectiveness of this Amendment, which fee shall be fully earned and
non-refundable when paid.
3. Upon the Lessee's payment of the amendment fee referenced in Section
C(2) above and the Administrative Agent's receipt of executed signature pages
from all parties to this Amendment, this Amendment shall become effective as of
the date hereof, except that, for purposes of Sections 5.5 and 5.6 of the
Participation Agreement, the effective date of this Amendment shall be deemed to
be one (1) Business Day prior to the last day of the Fiscal Quarter ending
closest to December 31, 1997.
4. Except as expressly set forth herein, this Amendment shall be deemed not
to waive or modify any provision of the Participation Agreement or the other
Operative Agreements, and all terms of the Participation Agreement, as amended
hereby, shall be and shall remain in full force and effect and shall constitute
a legal, valid, binding and enforceable obligations of the Lessee, the Owner
Trustee, the Holder, the Lenders and the Administrative Agent. All references to
the Participation Agreement shall hereinafter be references to the Participation
Agreement as amended by this Amendment.
5
<PAGE>
5. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA AND ALL APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
6. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
7. This Amendment shall be binding on, and shall inure to the benefit of,
the successors and assigns of the parties hereto.
8. In the event that any part of this Agreement shall be found to be
illegal or in violation of public policy, or for any reason unenforceable at
law, such finding shall not invalidate any other part thereof.
9. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.
10. The parties agree that their signatures by telecopy or facsimile shall
be effective and binding upon them as though executed in ink on paper but that
the parties shall exchange original ink signatures promptly following any such
delivery by telecopy or facsimile.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first above written.
APPLE SOUTH, INC., as the Lessee
By:
Name:
Title:
[Signature Pages Continued]
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity
except as expressly provided herein,
but solely as Owner Trustee under
Apple South Trust No. 97-1
By:
Name:
Title:
6
<PAGE>
[Signature Pages Continued]
SUNTRUST BANK, ATLANTA,
as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
SUNTRUST BANK,
ATLANTA, as a Lender
By:
Name:
Title:
By:
Name:
Title:
[Signature Pages Continued]
SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as a Lender
By:
Name:
Title:
[Signature Pages Continued]
AMSOUTH BANK, as a Lender
By:
Name:
Title:
7
<PAGE>
[Signature Pages Continued]
REGIONS BANK, as a Lender
By:
Name:
Title:
[Signature Pages Continued]
COMPASS BANK, as a Lender
By:
Name:
Title:
[Signature Pages Continued]
FIRST UNION NATIONAL BANK,
as a Lender
By:
Name:
Title:
[Signature Pages Continued]
BANCBOSTON LEASING INC., as a Lender
By:
Name:
Title:
[Signature Pages Continued]
STI CREDIT CORPORATION,
as the Holder
By:
Name:
Title:
By:
Name:
Title:
8
<PAGE>
EXHIBIT A
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO MASTER EQUIPMENT LEASE AGREEMENT (this "Amendment")
is entered into as of March __, 1998, between FIRST SECURITY BANK, NATIONAL
ASSOCIATION, a national banking association ("First Security"), not in its
individual capacity except as expressly provided herein, but solely as Owner
Trustee under Apple South Trust No. 97-1 (herein in such capacity, together with
its successors and assigns permitted hereunder, called the "Owner Trustee"), and
APPLE SOUTH, INC., a corporation organized and existing under the Laws of
Georgia (herein, together with its successors and assigns permitted hereunder,
called the "Lessee").
W I T N E S S E T H
WHEREAS, the Lessee and the Owner Trustee are parties to that certain
Master Equipment Lease Agreement, dated as of September 24, 1998 (the "Lease";
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Lease or in Appendix A to the Participation
Agreement, as defined in the Lease);
WHEREAS, the Lessee has requested that the Lease be amended in connection
with its divestiture of its Applebee's Neighborhood Bar & Grill restaurants, and
the Owner Trustee is willing to amend the Lease on the terms and conditions set
forth herein;
NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged, the
Lessee and the Owner Trustee hereby amend the Lease as follows:
A. AMENDMENT
Section 14 of the Lease is amended by replacing subsections (d) and (q)
thereof with the following:
(d) Lessee shall default in the performance or observance of any covenant
set forth or referenced in Sections 5.3 through 5.13 or Section 5.26 of the
Participation Agreement; or Lessee shall default in the performance or
observance of any other covenants set forth or referenced in Section 5 of the
Participation Agreement, and such default shall not be remedied within 10 days
after the earlier to occur of (i) written notice thereof having been given to
Lessee by Lessor or the Administrative Agent, or (ii) any executive, senior
financial or accounting officer of Lessee otherwise becomes aware of any such
default; or
1
<PAGE>
(q) if any of the Franchise Rights of Lessee or its Subsidiaries shall be
forfeited, suspended, lost, rejected, disclaimed, impaired, curtailed or
otherwise adversely altered or affected in any manner, in whole or in any
material part, for any reason whatsoever, whether or not related to Lessee's or
such Subsidiary's performance of its duties and obligations as franchisee at any
time hereafter except with respect to any Voluntary Store Closing and except in
connection with any Applebee's Spinoff; or there shall occur any default by
Lessee or any such Subsidiary in the payment, performance or observance of any
terms, covenants or conditions of any franchise or development agreements giving
rise to the existence and/or continuation of any such Franchise Rights, and any
grace or cure period relative thereto granted therein shall have expired without
such default being waived or cured except in connection with any Applebee's
Spinoff.
B. MISCELLANEOUS
1. Except as expressly set forth herein, this Amendment shall be deemed not
to waive or modify any provision of the Lease or the other Operative Agreements,
and all terms of the Lease, as amended hereby, shall be and shall remain in full
force and effect and shall constitute a legal, valid, binding and enforceable
obligations of the Lessee and the Owner Trustee. All references to the Lease
shall hereinafter be references to the Lease as amended by this Amendment.
2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF GEORGIA AND ALL APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
3. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
4. This Amendment shall be binding on, and shall inure to the benefit of,
the successors and assigns of the parties hereto.
5. In the event that any part of this Agreement shall be found to be
illegal or in violation of public policy, or for any reason unenforceable at
law, such finding shall not invalidate any other part thereof.
6. TIME IS OF THE ESSENCE UNDER THIS AGREEMENT.
7. The parties agree that their signatures by telecopy or facsimile shall
be effective and binding upon them as though executed in ink on paper but that
the parties shall exchange original ink signatures promptly following any such
delivery by telecopy or facsimile.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first above written.
APPLE SOUTH, INC., as the Lessee
By:
Name:
Title:
FIRST SECURITY BANK,
NATIONAL ASSOCIATION,
not in its individual capacity
except as expressly provided herein,
but solely as Owner Trustee under
Apple South Trust No. 97-1
By:
Name:
Title:
3
<TABLE>
Exhibit 11.1
Computation of Earnings Per Common Share
(In thousands, except share data)
<CAPTION>
Quarter Ended
- ------------------------------------------------------------------------------------------------------------------------------------
March 29, March 30,
1998 1997
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Average number of common shares used in basic calculation 38,820 38,803
Net additional shares issuable pursuant to employee stock
option plans at period-end market price 139 99
Shares issuable on assumed conversion of convertible
preferred securities 7,774 -
====================================================================================================================================
Average number of common shares used in diluted calculation 46,733 38,902
====================================================================================================================================
Earnings before cumulative effect of change in accounting principle 38,539 7,268
Cumulative effect of change in accounting principle, net of tax benefit 1,461 -
- ------------------------------------------------------------------------------------------------------------------------------------
Net earnings 37,078 7,268
Distribution savings on assumed conversion of convertible
preferred securities, net of income taxes 1,328 -
====================================================================================================================================
Net earnings for computation of diluted earnings per common share 38,406 7,268
====================================================================================================================================
Basic earnings before cumulative effect of change in accounting principle 0.99 0.19
Cumulative effect of change in accounting principle (0.04) -
====================================================================================================================================
Basic earnings per common share 0.95 0.19
====================================================================================================================================
Diluted earnings before cumulative effect of change in accounting principle 0.85 0.19
Cumulative effect of change in accounting principle (0.03) -
====================================================================================================================================
Diluted earnings per common share 0.82 0.19
====================================================================================================================================
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM
10-Q FOR THE PERIOD ENDING MARCH 29, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS).
</LEGEND>
<CIK> 0000849101
<NAME> Apple South, Inc.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 12-mos
<FISCAL-YEAR-END> Jan-03-1999
<PERIOD-START> Dec-29-1997
<PERIOD-END> Mar-29-1998
<CASH> 2,231
<SECURITIES> 27
<RECEIVABLES> 11,995
<ALLOWANCES> 0
<INVENTORY> 11,025
<CURRENT-ASSETS> 431,746
<PP&E> 307,199
<DEPRECIATION> 0
<TOTAL-ASSETS> 903,186
<CURRENT-LIABILITIES> 91,445
<BONDS> 414,751
115,000
0
<COMMON> 405
<OTHER-SE> 257,337
<TOTAL-LIABILITY-AND-EQUITY> 903,186
<SALES> 241,676
<TOTAL-REVENUES> 241,676
<CGS> 67,317
<TOTAL-COSTS> 206,627
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,146
<INCOME-PRETAX> 61,364
<INCOME-TAX> 22,825
<INCOME-CONTINUING> 38,539
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 1,461
<NET-INCOME> 37,078
<EPS-PRIMARY> 0.95
<EPS-DILUTED> 0.82
</TABLE>
