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EXHIBIT 10.15
SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT
This Second Amendment to Amended and Restated Loan Agreement is entered
into as of the 1st day of January, 1998, by and between COOKER RESTAURANT
CORPORATION ("Borrower"), a corporation organized and existing under the laws of
the State of Ohio, and FIRST UNION NATIONAL BANK ("Lender"), a national banking
association, as successor in interest to First Union National Bank of Tennessee.
RECITALS
WHEREAS, the parties hereto entered into that certain amended and restated
loan agreement dated December 22, 1995, as amended as of May, 1996 (the "Loan
Agreement");
WHEREAS, the Loan Agreement provides for a revolving credit facility that
was to be converted into a term facility on January 1, 1998, so that no further
advances thereunder would be made after January 1, 1998;
WHEREAS, the Borrower contemplates a restructuring of its corporate
structure to better reflect its geographical diversity, but requires the consent
of the Lender as a condition thereto;
WHEREAS, the parties are reviewing options to restructure the existing
financing, and desire to amend certain terms of the Loan Agreement while that
review is being conducted to permit the Borrower to continue to be able to
receive advances under the Loan Agreement and to reflect certain conditions to
approval of the Reorganization (as defined herein);
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The provisions of Sections 3, 4, 5, and 6 of this Agreement will only be
effective at the Effective Time (as defined in Section 19 hereof).
2. Article I of the Loan Agreement is amended as follows:
(i) There is added between the definitions of "ERISA" and "Financial
Statements" the following definition:
"FCLP Pledge Agreement" shall mean that certain pledge agreement
of even date herewith by Florida Cooker LP, Inc. in favor of the Lender, which
shall be in form acceptable to the Lender."
(ii) There is hereby added between the definitions of "GAAP" and
"Hazardous Waste" the following definitions:
"Guarantee" shall mean collectively those certain guaranties of
even date herewith from the Guarantors in favor of the Lender, each of which
shall be in form acceptable to the Lender.
"Guarantor" shall mean each of, and "Guarantors" shall mean
collectively all of, CGR Management Corporation, a corporation organized under
the laws of Florida; Florida Cooker LP, Inc., a corporation organized under the
laws of Florida; and, Southern Cooker Limited Partnership, a limited partnership
organized under the laws of Ohio.
(iii) There is added between the definitions of "Hazardous Substances"
and "IRC" the following definition:
"Indemnification Agreement" shall mean that certain indemnification
agreement dated as of January 1, 1998 from the Borrower and the Guarantors in
favor of the Lender, which shall be in form acceptable to the Lender."
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(iv) There is hereby added a new sentence at the end of the existing
definition of "Loan Documents" which sentence provides in entirety as follows:
"The term Loan Documents includes, but is not limited to, this Agreement, the
Revolving/Term Loan Note, the Guaranty, the Pledge Agreement and the FCLP Pledge
Agreement."
(v) There is added between the definitions of "Plan" and "Property" the
following definition:
"Pledge Agreement" shall mean that certain stock pledge agreement
dated of even date herewith from the Borrower in favor of the Lender, which
shall be in form acceptable to the Lender.
(vi) There is added between the definitions of "Real Property" and
"Revolving/Term Loan" the following definition:
"Reorganization" means that certain organization of Subsidiaries
and transfer of assets described in Exhibit IA.
(vii) There is added between the definitions of "Revolving/Term Loan"
and "Solvent" the following definition:
"Revolving/Term Loan Note" shall mean that certain Revolving/Term
Loan note dated August 26, 1991, as amended on June 29, 1993, on January 11,
1995, on December 22, 1995, and as of January 1, 1998."
3. The fourth sentence of Section 2.2(c.) of the Loan Agreement is amended
to provide in its entirety as follows:
"Provided, finally, at no time shall more than seven (7) separate interest rates
apply to borrowings under the Revolving/Term Loan."
4. The second and third sentences of Section 2.3(b) are amended to provide
in their entirety as follows:
"Additionally, on each of January 4, 1999, and April 5, 1999, Borrower shall
make a principal repayment of $1,650,000. Provided, however, if the
Revolving/Term Loan is not fully funded on January 1, 1999, the amount of the
quarterly principal installments due on January 2, 1999, and April 5, 1999 shall
be equal to the actual principal amount outstanding on January 1, 1999 divided
by twenty (20)."
5. Section 2.3(d) of the Loan Agreement is hereby amended to provide in its
entirety as follows:
"(d) All Amounts Due. All remaining principal, interest and expenses
outstanding under the Revolving/Term Loan shall become due June 30, 1999."
6. The second sentence of Section 2.4(a) of the Loan Agreement is amended
to provide in its entirety as follows:
"Without limiting the foregoing, the sum of $3,000,000 from the
Revolving/Term Loan is hereby designated by Borrower and Lender as "Daily
Working Capital Facility A."
7. The first sentence of the first paragraph of Section 2.5 of the Loan
Agreement is hereby amended to provide in its entirety as follows:
"From the Closing Date until January 1, 1999 (the "Conversion Date"),
Borrower may from time to time request and repay Advances under the
Revolving/Term Loan, provided that the total principal amount outstanding under
the Revolving/Term Loan shall not at any time exceed the amount stated in
Section 2.1 above or the amount permitted under Section 2.3(b) above."
8. Section 4.21 of the Loan Agreement is hereby amended to provide in its
entirety as follows:
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"Section 4.21 Subsidiaries. The Subsidiaries of the Borrower are as set
forth on Schedule 4.21 hereof, which schedule sets forth the amount of
authorized and outstanding capital stock of the Subsidiaries and the ownership
of the Subsidiaries.
9. There is hereby added to the Loan Agreement a new Section 5.16, which
provides in its entirety as follows:
"Section 5.16 The Reorganization. Prior to the Reorganization, the Borrower
did not Control any Person. As a result of the Reorganization, the Borrower has
caused to be organized the Guarantors, and has contributed certain assets to the
Guarantors which were previously the assets of the Borrower. Borrower
acknowledges that the Reorganization is not intended to adversely effect the
Lender or the Lender's rights to be repaid the Revolving/Term Loan, including
the Lender's continuing rights to realize upon the assets that have been
contributed to the Guarantors, or any assets that the Guarantors acquire as a
result of such contribution of assets or subsequent contributions of assets. In
furtherance of this acknowledgment, the Borrower agrees that it will take such
actions as are required by the Lender to insure that the Lender's ability to be
repaid is not compromised as a result of the Reorganization."
10. There is hereby added to the Loan Agreement a new Section 5.18, which
provides in its entirety as follows:
"Section 5.18 Year 2000 Compatibility. Borrower shall take all action
necessary to assure that Borrower's computer based systems are able to operate
and effectively process data including dates on and after January 1, 2000. At
the request of the Lender, Borrower shall provide Lender assurance acceptable to
Lender of Borrower's Year 2000 compatibility."
11. The first sentence of Section 6.1 hereof is hereby amended to provide
in its entirety as follows:
"Borrower shall maintain a minimum tangible net worth for each fiscal
quarter equal to or greater than $80 Million Dollars beginning at the fiscal
quarter ending December 31, 1997 and at all times thereafter."
12. Section 6.2 shall be amended to provide in its entirety as follows:
"Borrower shall maintain a minimum Fixed Charge Coverage Ratio calculated
for each fiscal quarter on a rolling basis for the prior 12 month period of not
less than 1.25. As used herein, "Fixed Charge Coverage" shall be calculated as
follows:
Net Income + Depreciation + Amortization + Lease Expense
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((Total Debt including subordinated debt, senior debt, all of balance sheet
obligations, obligations under synthetic leases or other structured financings,
divided by 5) + Interest Expense+Lease Expense," all as calculated in accordance
with GAAP.
13. The second sentence of Section 6.3 is amended to provide in its
entirety as follows:
"Total Capitalization" shall be defined as Senior Debt plus Subordinated
Debt plus all off balance sheet obligations, obligations under synthetic lease
or structured financings plus Equity. For purposes of Section 6.2 and 6.3
hereof, the obligation under a synthetic lease or other structured financing
shall be included even though such obligation may not be a liability under GAAP
and may not be reflected in the financial statements of the Borrower. The
financial covenants in this Article VI and compliance therewith shall be
calculated on a consolidated basis.
14. Section 7.4.1 of the Loan Agreement is hereby amended to provide in its
entirety as follows:
"7.4.1 New Restaurant Expansion. Borrower and its affiliates shall limit
new restaurant expansion to 8 stores in fiscal year 1998. Borrower will not
commit to establish any new restaurants or restaurant expansion in any fiscal
year beyond 1998 unless such stores can be established and supported out of
existing operational cash flow or other finance
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sources acceptable to Lender and Borrower, and provided in no event shall such
expansion exceed 8 stores after fiscal year 1998."
15. Section 7.6 is amended by adding at the end of that section a new
sentence which provides in its entirety as follows:
"The Borrower shall also not agree with any other party that the Borrower
will not enter into an agreement pursuant to which Borrower will not grant a
lien upon Borrower's property."
16. There is hereby added to the Loan Agreement a new Section 7.26, which
provides in its entirety as follows:
"Section 7.26 No Change of Control. The Borrower shall not take any action
that would transfer Control of any Subsidiary to any other Person, nor shall
Borrower take any action that would result in any ownership or voting interest
in any Subsidiary being transferred to any other Person."
17. Section 8.1(b) is amended to provide it its entirety as follows:
"(b) Representations and Warranties. Lender's determination that any
representation or warranty made by Borrower, any Guarantor or any other party in
any Loan Document was incorrect in any material respect.
18. Section 8.1(c) is amended to provide in its entirety as follows:
"(c) Covenants. Borrower's, Guarantor's or any other parties failure to
perform any covenant contained in the Loan Documents, not subject to any other
provision in this Article VIII, or the occurrence of any Default or Event of
Default denominated as such in any other Loan Document, with such Event of
Default being determined by including cure periods, if any, expressly provided
for in determining if there has occurred an Event of Default."
19. Section 8.1(h) is amended to provide in its entirety as follows:
"Guarantor Documents. The occurrence of an Event of Default under a
Guaranty or the FCLP Pledge Agreement."
20. The Effective Time shall only occur when the Borrower has performed the
following:
(i) delivered to the Lender: (a) the articles of incorporation and limited
partnership agreement of the Guarantors, certified as true and correct by the
Florida Secretary of State or equivalent authority in Ohio in the case of
Southern Cooker Limited Partnership; (b) the by-laws of the Corporate Guarantors
and the resolutions of the board of directors or general partner, as the case
may be, of the Borrower and the Guarantors; (c) a duly executed Guaranty, a duly
executed Pledge Agreement, the duly executed FCLP Pledge Agreement, the stock
and partnership certificates required to be delivered under the Pledge Agreement
or the FCLP Pledge Agreement, together with appropriate stock powers or
assignment; (d) an opinion of counsel to the Borrower and the Guarantors in form
acceptable to the Lender; (e) lien searches from the offices in the
jurisdictions in which a filing would be required to perfect a lien on the
assets of the Borrower or a Guarantor, which search shall demonstrate that there
are no liens on the assets of the Borrower or any Guarantor; (f) the Schedules
and Exhibits required to be prepared hereunder in connection with this
Amendment; (g) appropriate forms of financing statements to perfect the lien of
the Lender in the Collateral provided under the FCLP Pledge Agreement and the
Pledge Agreement; (h) the Indemnity Agreement, and corresponding affidavits of
execution; (i) the financial statements of the Guarantors required under Section
3(h) of each Guaranty; (j) the schedule to the ISDA Master Agreement between the
Lender and Borrower; and (k) an amendment to the Revolving/Term Loan Note;
(ii)payment to the Lender of its fees and expenses incurred in connection
with the negotiation, preparation and closing of this amendment and the actions
ancillary thereto.
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The "Effective Time" shall be deemed to have occurred when the Lender
delivers this Agreement to the Borrower with the signature of the Lender, which
shall evidence satisfaction of the foregoing requirements.
21. All notices under the Loan Documents shall hereafter be made as
provided in Section 16.2 of the Note and Stock Pledge Agreement.
22. The Borrower agrees that the Agreement is amended to provide that each
representation, warranty and covenant set forth in Articles IV, V and VII of the
Loan Agreement shall be deemed to be a representation, warranty and covenant by
and applicable to each Guarantor, except that (i) references in Section 4.1 of
the Loan Agreement to "Ohio" shall be with respect to the state of incorporation
or organization of the Guarantor and that references in Article IV of the Loan
Agreement to the Loan Documents shall, as applied to the Guarantor, be with
respect to the documents being executed by the Guarantor in connection with the
execution, delivery and performance by the Guarantor of the Guaranty; (ii) the
obligation to provide financial statements and other information under Section
5.1 of the Loan Agreement shall be satisfied by delivery of such information by
the Borrower on a consolidating basis and containing information satisfactory to
Lender to enable Lender to review the financial operations of each Guarantor;
(iii) compliance with the financial covenants shall be determined on a
consolidated basis among the Borrower and its Subsidiaries; (iv) the exceptions
to the negative covenants set forth in Article VI of the Loan Agreement shall
also be calculated on a consolidated basis; and (v) each Guarantor shall
maintain all of its bank accounts with FUNB.
23. The Lender has been informed by the Borrower that (i) the Internal
Revenue Service is auditing the Employee Stock Option Plan (the "ESOP")
established by the Borrower because Borrower failed to provide proxy statements
to certain employees for the years of 1994 and 1995; (ii) Borrower has entered
into sale/lease back transactions with respect to certain point of sale
terminals in which sale price was approximately $700,000; and (iii) Borrower
desires to repurchase approximately 500,000 shares of its outstanding stock to
contribute to the ESOP. The Borrower represents to Lender that such actions will
not have a material, adverse effect upon Borrower on its ability to perform its
obligations, under the Loan Agreement, and Borrower represents that such share
repurchase will be at a price not to exceed the price then quoted for such
shares in the open market. Based upon the foregoing representation, Lender
agrees such action does not constitute an Event of Default.
24. The Borrower represents to the Lender that the Borrower has taken all
action required to authorize the execution, delivery and performance of this
amendment; that the execution, delivery and performance of this amendment do not
violate the articles of incorporation or by-laws of the Borrower, or any
agreement to which Borrower is a party or by which it is bound; that Borrower is
in good standing in each jurisdiction in which Borrower is transaction business;
that no event has occurred that has not been disclosed to the Lender by Borrower
that if it had been disclosed would be material to the Lender's decision to
enter into this amendment; and that no event of default, nor event that with the
passage of time or giving of notice would be an event of default, has occurred
under the Loan Document.
25. Except for the amendments expressly set forth herein, the parties
hereto agree that the Loan Agreement is not otherwise being amended hereby.
COOKER RESTAURANT CORPORATION,
an Ohio corporation
/s/ G. ARTHUR SEELBINDER
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By: G. Arthur Seelbinder
Its: Chairman and Chief Executive Officer
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FIRST UNION NATIONAL BANK
/s/ M. WALKER DUVALL
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By: Walker Duvall
Its: Senior Vice President
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COMMONWEALTH OF THE BAHAMAS
The foregoing instrument was acknowledged before me this 30th day of March
1998, by G. Arthur Seelbinder as Chairman and Chief Executive Office of COOKER
RESTAURANT CORPORATION, an Ohio Corporation, who is personally known to me or
has produced a passport as identification.
/s/ ARTHUR SELIGMAN
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Notary Public
Name of Notary Printed:
Arthur Seligman
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(NOTARY SEAL)
My commission expires: 31st December 1998
My commission number is: --------------
COMMONWEALTH OF THE BAHAMAS
The foregoing instrument was acknowledged before me this 30th day of March
1998, by Walker Duvall as Senior Vice President of FIRST UNION NATIONAL BANK, a
national banking association, who is personally known to me.
/s/ ARTHUR SELIGMAN
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Notary Public
Name of Notary Printed:
Arthur Seligman
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(NOTARY SEAL)
My commission expires: 31st December 1998
My commission number is: -----------
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