Delaware
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5812
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16-1287774
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer (Do not check if smaller reporting company)
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¨
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Smaller Reporting Company
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¨
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Title of Each Class of
Securities to be Registered
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Amount to be
Registered
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Proposed
Maximum
Offering Price
Per Note
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Proposed
Maximum
Aggregate Offering
Price (1)
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Amount of
Registration
Fee (1)
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11.25% Senior Secured Second Lien Notes Due 2018
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$150,000,000
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100%
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$150,000,000
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$ 20,460 (3)
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Guarantees of 11.25% Senior Secured Second Lien Notes Due 2018 (2)
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N/A
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N/A
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—(2)
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—(2)
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(1)
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Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(f) promulgated under the Securities Act of 1933.
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(2)
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Each of the subsidiary guarantors listed in the Table of Additional Registrants on the next page will guarantee the notes being registered hereby. Pursuant to Rule 457(n) under the Securities Act of 1933, no separate fee for the guarantees is payable.
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(3)
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Previously paid.
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Exact Name of Additional Registrants as Specified in their Respective Charters*
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State or Other Jurisdiction of Incorporation or
Organization
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Primary Standard Industrial Classification Code
Number
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IRS Employer Identification
Number
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Carrols Corporation
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Delaware
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5812
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16-0958146
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Carrols LLC
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Delaware
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5812
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26-2614958
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*
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The address, including zip code and telephone number, including area code, of each additional registrant is: 968 James Street, Syracuse, New York 13203, (315) 424-0513.
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The terms of the exchange notes are identical to the terms of the outstanding notes, except that the exchange notes have been registered under the Securities Act of 1933, as amended, or the “Securities Act,” and will not contain restrictions on transfer.
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The exchange notes will represent the same debt as the outstanding notes, and we will issue the exchange notes under the same indenture.
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All outstanding notes that you validly tender and do not validly withdraw before this exchange offer expires will be exchanged for an equal principal amount of the relevant exchange notes.
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This exchange offer expires at 5:00 p.m., New York City time, on , 2012, unless extended.
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Tenders of outstanding notes may be withdrawn at any time prior to the expiration of this exchange offer.
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The exchange of exchange notes for outstanding notes will not be a taxable event for U.S. federal income tax purposes.
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We will not receive any proceeds from this exchange offer.
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There is no existing public market for the outstanding notes or the exchange notes. We do not intend to list the exchange notes on any securities exchange or seek approval for quotation through any automated trading system. The exchange notes may be sold in the over-the-counter market, in negotiated transactions or through a combination of these methods.
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If you fail to tender your outstanding notes for the exchange notes, you will continue to hold unregistered securities and it may be difficult for you to transfer them.
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our Annual Report on Form 10-K for the fiscal year ended January 1, 2012, filed on March 8, 2012 and as amended on March 13, 2012;
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our Definitive Proxy Statement on Schedule 14A filed on July 11, 2012;
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our Quarterly Report on Form 10-Q for the quarter ended April 1, 2012, filed on May 10, 2012;
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our Quarterly Report on Form 10-Q for the quarter ended July 1, 2012, filed on August 10, 2012;
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our Quarterly Report on Form 10-Q for the quarter ended September 30, 2012, filed on November 9, 2012;
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our Current Reports on Form 8-K or Form 8-K/A filed on: March 28, 2012; April 3, 2012; April 26, 2012; May 8, 2012; May 11, 2012; May 18, 2012; May 30, 2012; June 1, 2012; August 7, 2012; August 15, 2012; September 4, 2012; November 6, 2012; and November 8, 2012; and
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the description of our common stock contained in our Registration Statement on Form 8-A as filed with the SEC on November 30, 2006 and any further amendment or report filed hereafter for the purpose of updating such description.
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The effect of the tax-free spin-off of Fiesta Restaurant Group by Carrols Restaurant Group;
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The potential tax liability associated with the spin-off of Fiesta Restaurant Group by Carrols Restaurant Group;
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Effectiveness of Burger King advertising programs and the overall success of the Burger King brand;
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Increases in food costs and other commodity costs;
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Competitive conditions;
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Our ability to integrate any businesses we acquire, including the acquired restaurants;
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Regulatory factors;
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Environmental conditions and regulations;
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General economic conditions, particularly in the retail sector;
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Weather conditions;
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Fuel prices;
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Significant disruptions in service or supply by any of our suppliers or distributors;
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Changes in consumer perception of dietary health and food safety;
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Labor and employment benefit costs;
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The outcome of pending or future legal claims or proceedings;
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Our dependence on BKC as a franchisee;
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Our ability to manage our growth and successfully implement our business strategy;
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Risks associated with the expansion of our business;
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Our borrowing costs and credit ratings, which may be influenced by the credit ratings of our competitors;
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The availability and terms of necessary or desirable financing or refinancing and other related risks and uncertainties;
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The risk of an act of terrorism or escalation of any insurrection or armed conflict involving the United States or any other national or international calamity;
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Factors that affect the restaurant industry generally, including recalls if products become adulterated or misbranded, liability if our products cause injury, ingredient disclosure and labeling laws and regulations, reports of cases of food borne illnesses such as “mad cow” disease and avian flu and the possibility that consumers could lose confidence in the safety and quality of certain food products, as well as negative publicity regarding food quality, illness, injury or other health concerns; and
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Other factors discussed under “Risk Factors” herein.
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SUMMARY
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The following is a summary of material information discussed in this prospectus. This summary may not contain all the details concerning the exchange offer or other information that may be important to you. To better understand the exchange offer and our business and financial position, you should carefully review this entire prospectus.
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Our common stock is listed on The NASDAQ Global Market under the symbol “TAST.” On May 7, 2012, we completed the spin-off of our wholly-owned subsidiary, Fiesta Restaurant Group by distributing all of the outstanding shares of Fiesta Restaurant Group common stock to our stockholders. Fiesta Restaurant Group became an independent public company and its common stock is listed on The NASDAQ Global Select Market under the symbol “FRGI.” See “—Recent Developments—Spin-Off of Fiesta Restaurant Group.”
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Our Company
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We are one of the largest restaurant companies in the United States and have been operating restaurants for more than 50 years. We are the largest Burger King® franchisee in the world based on number of restaurants, and have operated Burger King restaurants since 1976. As of September 30, 2012, we owned and operated 572 Burger King restaurants located in 13 Northeastern, Midwestern and Southeastern states. Burger King restaurants feature the popular flame-broiled Whopper® sandwich, as well as a variety of hamburgers, chicken and other specialty sandwiches, french fries, salads, breakfast items, snacks and other offerings. We believe that our size, seasoned management team, extensive operating infrastructure, experience and proven operating disciplines differentiate us from many of our competitors as well as many other Burger King operators.
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On May 30, 2012, we consummated the acquisition from Burger King Corporation of 278 Burger King restaurants, which we refer to as the “acquired restaurants.” Total cash consideration of approximately $16.2 million included $3.8 million to be paid over five years. Non-cash consideration to BKC included a 28.9% equity ownership interest in Carrols Restaurant Group through the issuance to BKC of 100 shares of our Series A Convertible Preferred Stock. The acquired restaurants are located in seven Mid-Atlantic, Midwestern and Southeastern states. Additionally, pursuant to an operating agreement dated as of May 30, 2012, between us and BKC, which we refer to as the “operating agreement,” BKC assigned to us its right of first refusal , which we refer to as the “ROFR,”on sales of restaurants by franchisees in 20 states for 20 years or until we operate 1,000 Burger King restaurants, subject to compliance with the operating agreement. Under the operating agreement, BKC also granted to us certain pre-approval rights. We have agreed to remodel 455 Burger King restaurants to BKC's “20/20” restaurant image, including 57 restaurants in 2012, 154 restaurants in 2013, 154 restaurants in 2014 and 90 restaurants in 2015.
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Burger King Restaurants
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According to BKC, as of September 30, 2012, there were a total of 12,667 Burger King restaurants, of which 12,072 were franchised restaurants and 7,453 were located in the United States and Canada. Burger King is the second largest hamburger restaurant chain in the world (as measured by number of restaurants) and we believe that the Burger King brand is one of the world's most recognized consumer brands. Burger King restaurants are part of the Burger menu category within the limited service segment. Burger King restaurants have a distinctive image and are generally located in high-traffic areas throughout the United States. Burger King restaurants are designed to appeal to a broad spectrum of consumers, with multiple day-part meal segments targeted to different groups of consumers.
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BKC's marketing strategy is characterized by its HAVE IT YOUR WAY
®
service, flame grilling, generous portions and competitive prices. Burger King restaurants feature flame-grilled hamburgers, the most popular of which is the Whopper sandwich, a large, flame-grilled hamburger garnished with mayonnaise, lettuce, onions, pickles and tomatoes. The basic menu of all Burger King restaurants also includes a variety of hamburgers, chicken and other specialty sandwiches, french fries, salads, breakfast items, snacks, and other offerings. BKC and its franchisees have historically spent between 4% and 5% of their respective sales on marketing, advertising and promotion to sustain high brand awareness. BKC has recently launched marketing initiatives to reach a more diverse consumer base and has introduced a number of new and enhanced menu items to broaden offerings and drive customer traffic in all day parts.
We believe that the competitive attributes of Burger King restaurants include significant brand recognition, convenience of location, quality, speed of service and price.
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Industry Overview
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The Restaurant Market.
According to Technomic, in 2011, total restaurant industry revenues in the United States were approximately $370.2 billion, representing an increase of 2.5% from 2010. Technomic projects total restaurant industry revenue to grow by 2.9% in 2012. Restaurant sales historically have closely tracked several macroeconomic indicators and we believe that “away-from-home” food consumption will continue to rebound as the economy recovers. Historically, unemployment has been inversely related to restaurant sales and, as the unemployment rate decreases and disposable income increases, restaurant sales have increased. In 2011, 47.5% of food dollars were spent on food away from home and demand continues to outpace at-home dining, with food away from home projected to surpass at-home dining in 2021 according to the U.S. Department of Agriculture.
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Limited-service Restaurants.
Limited-service restaurants are distinguished by high speed of service and efficiency, convenience, limited menu and service and value pricing. According to Technomic, in 2011 sales at all limited-service restaurants in the United States were $200.9 billion, an increase of 3.1% from 2010 and representing 54.3% of total U.S. restaurant industry sales. This constitutes an increase in overall market share when compared to the 53.9% of total U.S. restaurant industry sales attributed to limited-service restaurants in 2010. According to Technomic, in 2012, sales for limited-service restaurants are projected to increase 3.5%.
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Technomic reports that sales in the limited-service industry in 2011 were divided by menu category as follows:
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The Burger menu category is the largest within the limited-service segment, representing 34% of 2011 sales. According to Technomic, sales in the Burger menu category grew by 3.7% in 2011 and are forecasted to grow by 4.1% in 2012, outpacing the overall limited-service segment.
According to Technomic, in 2011, franchises contributed 72% of sales to the limited-service restaurant segment and accounted for eight out of ten stores.
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Our Competitive Strengths
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Largest Burger King Franchisee.
We are Burger King's largest franchisee, based on number of restaurants, and are well positioned to leverage the scale and marketing of one of the most recognized brands in the restaurant industry. We believe the geographic dispersion of our restaurants will provide us with stability and enhanced growth opportunities in many of the markets in which we operate. We also believe that our large number of restaurants increases our ability to effectively manage the brand awareness of the Burger King brand in certain markets.
Operational Expertise.
Our focus is on leveraging our operational expertise in order to optimize the performance of our restaurants. We have developed sophisticated information and operating systems that enable us to measure and monitor key metrics in order to optimize operational performance, sales and profitability. We believe that our experienced management team, operating culture, effective operating systems and infrastructure enable us to operate more efficiently than many other Burger King operators, resulting in better restaurant margins and overall performance.
Distinct Brand with Global Recognition, Innovative Marketing and New Product Development.
As Burger King's largest franchisee, based on number of restaurants, we benefit from, and rely on, BKC's extensive marketing, advertising and product development capabilities to drive sales and generate restaurant traffic. Over the years, BKC has launched innovative and creative multimedia advertising campaigns that highlight the popular relevance of the Burger King brand.
Ad Week
has named Burger King one of the top three industry-changing advertisers within the last three decades.
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Consistent Operating History.
We believe our long-term track record of operating and financial management capabilities has resulted in consistent and stable cash flows and has demonstrated our ability to prudently manage financial leverage through a variety of economic cycles. We believe our cash flow will continue to allow us to fund our ongoing operations and capital expenditure needs while also providing the capital necessary to service our debt.
Strategic Relationship with Burger King Corporation.
We believe that the structure of the acquisition will further strengthen our well-established relationship with BKC and further align our common interests to grow our business and the Burger King business as a whole. The consideration to BKC included a 28.9% equity interest in Carrols Restaurant Group. BKC's President, North America, Steven M. Wiborg, and Chief Financial Officer, Daniel Schwartz, joined our Board of Directors upon the closing of the acquisition on May 30, 2012.
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Experienced Management Team with a Proven Track Record.
We believe that our senior management team's extensive experience in the restaurant industry and its long and successful history of developing, acquiring, integrating and operating quick-service restaurants provides us with a competitive advantage. Our operations are overseen by our Chief Executive Officer, Dan Accordino, who has over 40 years of Burger King and quick-service restaurant experience, and seven Regional Directors that have an average of 25 years of Burger King restaurant experience. Seventy-three district managers support the Regional Directors and have an average of over 15 years of restaurant management experience in the Burger King system. Our operations management is further supported by our infrastructure of financial, information systems, real estate and human resources professionals. Our management team has a successful history of managing strategic transformations, and over the past 20 years, we have (prior to giving effect to the acquisition) doubled the number of Burger King restaurants we own and operate, largely through acquisitions. In addition, we successfully acquired, integrated and expanded the Pollo Tropical and Taco Cabana brands, which we acquired in 1998 and in 2000, respectively. The Pollo Tropical and Taco Cabana brands are owned and operated by Fiesta Restaurant Group which was spun-off by us on May 7, 2012.
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Our Business Strategy
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Our primary business strategies are as follows:
Increase Restaurant Sales and Customer Traffic.
BKC has recently identified and implemented a number of strategies to reinvigorate the brand, increase market share, improve overall operations and drive future growth. These strategies are central to our strategic objectives to deliver profitable growth.
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Product.
On April 2, 2012, BKC launched one of the broadest expansions of food offerings in its 58-year history, including the introduction of Thick Cut Fries, Garden Fresh Salads, Wraps, Real Fruit Smoothies and Frappes
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There have also been a number of enhancements to food preparation procedures to improve the quality of BKC's existing products. These new menu platforms and quality improvements form the backbone of BKC's strategy to appeal to a broader consumer base and to increase restaurant sales.
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Image.
We have agreed to remodel 455 restaurants over the next three and a half years to BKC's “20/20” restaurant image which features a fresh, sleek, eye-catching design. The restaurant redesign incorporates easy-to-navigate digital menu boards in the dining room, streamlined merchandising at the drive-thru, flat screen televisions in the dining area and new employee uniforms. We believe the restaurant remodeling plan will improve our guests' dining experience, increase dining frequency and help drive increases in average check size from more dine-in visits.
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Advertising.
We believe that we will benefit from BKC's advertising support of its new menu, product enhancement and reimaging initiatives. In late 2011, BKC launched a revamped national, multi-platform marketing campaign centered around the quality of its food, featuring both new and core offerings. The campaign, which features celebrities, highlights the new menu platforms and returns the brand to its roots with a refreshed focus on the flagship Whopper sandwich. We believe the campaign will broaden the appeal of the brand while increasing customer frequency and brand loyalty.
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Improve Profitability of Acquired Restaurants by Leveraging Our Existing Infrastructure and Best-Practices.
With the acquisition of 278 restaurants from BKC, we believe we have opportunities to realize benefits from economies of scale, including leveraging our existing infrastructure across a larger number of restaurants. Additionally, we believe that our skilled management team, sophisticated information technology, operating systems and training and development programs support our ability to enhance operating efficiencies at the acquired restaurants. We have identified a number of opportunities to enhance the profitability of the newly acquired restaurants and we believe, over time, these new restaurants can achieve comparable levels of profitability and operational efficiency as our current store base.
Selectively Acquire and Develop Additional Burger King Restaurants.
As of September 30, 2012, w
e operated 572 Burger King restaurants, making us the largest Burger King franchisee in the world. In addition, as a part of the acquisition, BKC assigned to us its ROFR and granted us certain pre-approval rights to acquire additional franchised restaurants and to develop new restaurants in those markets. Due to the number of restaurants and franchisees in the Burger King franchise system and our historical success in acquiring and integrating restaurants, we believe that there is considerable opportunity for future growth. While our primary focus in the near-term is to successfully integrate, remodel and improve the profitability of the acquired restaurants, we believe that the assignment of the ROFR and the pre-approval to acquire and develop additional restaurants provide us with the opportunity to expand our ownership of Burger King restaurants in the future through selective acquisitions and new restaurant openings.
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Recent Developments
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The Acquisition
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On March 26, 2012, we and Carrols LLC entered into an asset purchase agreement, which we refer to as the “purchase agreement,” with BKC pursuant to which we, through Carrols LLC, agreed to purchase 278 of BKC's company-owned restaurants located in Ohio, Indiana, Kentucky, Pennsylvania, North Carolina, South Carolina and Virginia. The consummation of the acquisition occurred on May 30, 2012. As consideration for the acquisition, we (i) issued to BKC 100 shares of Series A Convertible Preferred Stock, which we refer to as the “Series A Preferred Stock,” (ii) paid cash payments to BKC at closing of $2.9 million (subject to adjustment) for cash on hand and inventory at the acquired restaurants and (iii) will pay other cash payments of approximately $13.3 million, of which approximately $9.6 million was paid at closing and the balance to be paid over five years. The cash payment of approximately $13.3 million is for refranchising fees, for BKC's assignment of the ROFR and certain other pre-approval rights for future acquisitions granted to us pursuant to the operating agreement. The Series A Preferred Stock issued to BKC equals a 28.9% equity ownership interest in Carrols Restaurant Group, subject to restrictions limiting the conversion of the Series A Preferred Stock to an amount of shares not to exceed 19.9% of the outstanding shares of our common stock as of the date of issuance, which we refer to as the “issuance limitation.” At our annual meeting held on August 29, 2012, our stockholders approved the removal of the issuance limitation.
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Pursuant to the purchase agreement and the operating agreement, we entered into new franchise agreements and leases or subleases with BKC for all of the acquired restaurants.
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Series A Convertible Preferred Stock
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Upon the closing of the acquisition on May 30, 2012, we issued to BKC 100 shares of Series A Preferred Stock, pursuant to a certificate of designation, which is convertible into 28.9% of the outstanding shares of our common stock, which we refer to as the “conversion shares” on a fully diluted basis. Pursuant to the purchase agreement, the removal of the issuance limitation was subject to obtaining the approval of our stockholders at our next annual meeting after the closing of the acquisition or at subsequent meetings, if necessary, until stockholder approval is obtained. At our annual meeting held on August 29, 2012, our stockholders approved the removal of the issuance limitation. The Series A Preferred Stock and the conversion shares are subject to a three-year restriction on transfer by BKC, which we refer to as the “holding period.” BKC will also have certain approval rights so long as the number of shares of our common stock into which the outstanding shares of Series A Preferred Stock held by BKC are then convertible constitutes greater than 10% of the outstanding shares of our common stock as set forth in the certificate of designation and as further described elsewhere in this prospectus. The Series A Preferred Stock votes with our common stock on an as-converted basis and provides for the right of BKC to elect two members of our board of directors as Class A members as long as BKC continues to own a specified amount of Series A Preferred Stock. The Series A Preferred Stock ranks senior to our common stock with respect to rights on liquidation, winding-up and dissolution of Carrols Restaurant Group. The Series A Preferred Stock receives dividends and amounts upon a liquidation event on an as converted basis. The Series A Preferred Stock does not pay interest, is perpetual and has no mandatory prepayment features.
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Operating Agreement
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Carrols LLC and BKC also entered into an operating agreement which has a term commencing on the date of the closing of the acquisition and ending (unless earlier terminated in accordance with the provisions thereof) on the earlier to occur of (i) 20 years from such closing date of the acquisition or (ii) the date that we operate 1,000 Burger King restaurants. Pursuant to the operating agreement, BKC assigned to us its right of first refusal under its franchise agreements with its franchisees to purchase all of the assets of a Burger King restaurant or all or substantially all of the voting stock of the franchisee, whether direct or indirect, on the same terms proposed between such franchisee and a third party purchaser, in 20 states as follows: Connecticut (except Hartford county), Delaware, Indiana, Kentucky, Maine, Maryland, Massachusetts (except for Middlesex, Norfolk and Suffolk counties), Michigan, New Hampshire, New Jersey, New York (except for Bronx, Kings, Nassau, New York, Queens, Richmond, Suffolk and Westchester counties), North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Vermont, Virginia, Washington DC, and West Virginia, which we refer to as the “DMAs.”
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Pursuant to the operating agreement, BKC also granted us franchise pre-approval, which we refer to as the “franchise pre-approval,” to build new Burger King restaurants or acquire Burger King restaurants from Burger King franchisees in the DMAs, which we refer to as “new restaurant growth.” We will pay BKC approximately $3.8 million for the ROFR and the franchise pre-approval rights in equal quarterly installments of $190,227 over a five year period with the first payment made on the closing date of the acquisition.
The pre-approval to develop new Burger King restaurants in the DMA's is a non-exclusive right, subject to customary BKC franchise, site and construction approval. Beginning on January 1 of the calendar year following the third anniversary of the closing date of the acquisition, a minimum of 10% of our restaurant growth in each calendar year during the term of the operating agreement must come from new restaurant growth (including restaurants closed and relocated in the same market). As part of franchise pre-approval, BKC granted us pre-approval for acquisitions of Burger King restaurants from franchisees in the DMAs where we then have a Burger King restaurant.
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Pursuant to the operating agreement, we agreed to remodel 455 of our existing restaurants and the acquired restaurants to BKC's 20/20 restaurant image, including 57 restaurants in 2012, 154 restaurants in 2013, 154 restaurants in 2014 and 90 restaurants in 2015, which we refer to as the “remodel plan.” If we fail to be in compliance with the remodel plan, BKC's sole remedy is the suspension of the ROFR as further provided in the operating agreement. We will be deemed in compliance with the remodel plan in each calendar year so long as we complete at least 90% of the remodel plan for such year. In any year that the ROFR has been suspended, we will be deemed to be back in compliance with the remodel plan and the ROFR will automatically be restored as soon as we complete 100% of the remodels that were required for the calendar year resulting in the suspension.
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We refer to (i) the entering into of (a) the purchase agreement, (b) the operating agreement, (c) new franchise agreements and leases and subleases with respect to the acquired restaurants and (d) other agreements in connection with the acquisition described elsewhere in this prospectus, (ii) the issuance of the Series A Preferred Stock and (iii) the consummation of the acquisition as the “acquisition.”
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Spin-Off of Fiesta Restaurant Group
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On April 24, 2012, we and Carrols entered into a separation and distribution agreement with Fiesta Restaurant Group, pursuant to which Fiesta Restaurant Group was legally and structurally separated from us. The separation was accomplished through the distribution, in the form of a dividend, by Carrols of all of Fiesta Restaurant Group's outstanding common stock to us and, immediately thereafter, the distribution, in the form of a dividend, by us of all of Fiesta Restaurant Group's outstanding common stock to our stockholders, which occurred on May 7, 2012, which we refer to as the “distribution date.” On the distribution date, each holder of our common stock received one share of Fiesta Restaurant Group's common stock for every one share of our common stock held, which we refer to as the “spin-off.” Since the distribution date, we do not hold any direct or indirect ownership interest in Fiesta Restaurant Group.
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In connection with the spin-off, on April 24, 2012, we and Carrols also entered into a transition services agreement with Fiesta Restaurant Group to provide certain administrative support services in order to provide Fiesta Restaurant Group sufficient time to develop its own infrastructure. We will provide services under the transition services agreement for a period of three years following the spin-off. However, Fiesta Restaurant Group may terminate the agreement with respect to any specific service upon 90 days prior written notice. Fiesta Restaurant Group may extend the term of the transition services agreement by one additional year upon 90 days prior written notice to Carrols and us. In addition to the separation and distribution agreement and the transition services agreement, in connection with the spin-off, we and Carrols entered into a tax matters agreement and an employee matters agreement with Fiesta Restaurant Group.
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New Revolving Credit Facility
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Concurrently with the closing of the outstanding notes offering on May 30, 2012, we entered into a new first lien revolving credit facility with Wells Fargo Bank, National Association, as administrative agent, which we refer to as the “new revolving credit facility.” The new revolving credit facility provides for aggregate borrowings of up to $20.0 million (including $15.0 million available for letters of credit). The new revolving credit facility has a five year maturity.
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We refer to (i) the issuance by us of $150 million of notes, (ii) our entering into the new revolving credit facility and any borrowings thereunder, (iii) the repayment of all outstanding borrowings under the prior Carrols LLC senior credit facility and the settlement of Carrols LLC's pre-existing interest rate swap agreement and (iv) the fees and expenses related to the foregoing as the “financing transactions.” The financing transactions were consummated simultaneously with the closing of the acquisition on May 30, 2012.
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We refer to the spin-off, the financing transactions and the acquisition as the “transactions.”
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Corporate Information
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We are a Delaware corporation, incorporated in 1986. We conduct all of our operations through our indirect subsidiary, Carrols LLC, a Delaware limited liability company. We have no assets other than the shares of Carrols. Our principal executive offices are located at 968 James Street, Syracuse, New York 13203 and our telephone number at that address is (315) 424-0513. Our corporate website is www.carrols.com. Such website address is a textual reference only, meaning that the information contained on our website is not a part of this prospectus and is not incorporated by reference in this prospectus.
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Summary of the Exchange Offer
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The Initial Offering of Outstanding Notes
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We sold the outstanding notes on May 30, 2012 to the initial purchasers. The initial purchasers subsequently resold the outstanding notes to qualified institutional buyers in reliance on Rule 144A under the Securities Act and to persons outside the United States in reliance on Regulation S.
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The Exchange Offer
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We are offering to exchange up to $150.0 million aggregate principal amount of 11.25% Senior Secured Second Lien Notes due 2018, which will be registered under the Securities Act, for up to $150.0 million aggregate principal amount of outstanding 11.25% Senior Secured Second Lien Notes due 2018. In order to be exchanged, an outstanding note must be properly tendered and accepted. We will issue $1,000 principal amount of exchange notes for each respective $1,000 principal amount of outstanding notes validly tendered and not withdrawn pursuant to this exchange offer. We will issue exchange notes promptly after the expiration of this exchange offer.
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Expiration Date
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This exchange offer expires at 5:00 p.m., New York City time, on , 2012, unless we decide to extend the expiration date, in which case the term “expiration date” means the latest date and time to which we extend this exchange offer. For more information, see “The Exchange Offer—Expiration Date; Extensions; Amendments.”
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Withdrawal Rights
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You may withdraw the tender of your outstanding notes at any time prior to 5:00 p.m., New York City time, on the expiration date. To withdraw, you must deliver a written or facsimile transmission notice of withdrawal to the exchange agent at its address indicated on the cover page of the letter of transmittal before 5:00 p.m., New York City time, on the expiration date of this exchange offer. For more information, see “The Exchange Offer—Withdrawal of Tenders.”
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Acceptance of Outstanding Notes and
Delivery of Exchange Notes
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If you fulfill all conditions required for proper acceptance of outstanding notes, we will accept any and all outstanding notes that you properly tender in this exchange offer on or before 5:00 p.m., New York City time, on the expiration date. We will return any outstanding notes that we do not accept for exchange to you as promptly as practicable after the expiration date and acceptance of the outstanding notes for exchange. See “The Exchange Offer—Terms of the Exchange Offer.”
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Conditions to the Exchange Offer
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This exchange offer is subject to customary conditions. See “The Exchange Offer—Conditions.”
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Procedures for Tendering
Outstanding Notes
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If you wish to tender your outstanding notes for exchange in this exchange offer, you must transmit to the exchange agent on or before 5:00 p.m., New York City time, on the expiration date either:
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an original or a facsimile of a properly completed and duly executed copy of the letter of transmittal which accompanies this prospectus, together with your outstanding notes and any other documentation required by the letter of transmittal, at the address provided on the cover page of the letter of transmittal; or
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if the outstanding notes you own are held of record by The Depositary Trust Company, or “DTC,” in book-entry form and you are making delivery by book-entry transfer, a computer-generated message transmitted by means of DTC's Automated Tender Offer Program System, or “ATOP,” in which you acknowledge and agree to be bound by the terms of the letter of transmittal and which, when received by the exchange agent, will form a part of a confirmation of book-entry transfer, DTC will facilitate the exchange of your outstanding notes and update your account to reflect the issuance of the exchange notes to you. ATOP allows you to electronically transmit your acceptance of this exchange offer to DTC instead of physically completing and delivering a letter of transmittal to the exchange agent.
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For more information see “The Exchange Offer—Procedures for Tendering.”
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Exchange Agent
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The Bank of New York Mellon Trust Company, N.A. is serving as the exchange agent in connection with this exchange offer. The address and telephone number of the exchange agent are set forth under “The Exchange Offer—Exchange Agent” at page 35.
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Federal Income Tax Considerations
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Based upon advice from counsel, we believe that the exchange of outstanding notes for exchange notes will not be a taxable event for U.S. federal income tax purposes. See “Certain U.S. Federal Income Tax Considerations.”
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Use of Proceeds
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We will not receive any proceeds from the issuance of exchange notes pursuant to this exchange offer. We will pay all of our expenses incident to this exchange offer.
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the liquidity of any trading market that may develop;
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the ability of holders to sell their exchange notes; or
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the price at which the holders will be able to sell their exchange notes.
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make it more difficult for us to satisfy our obligations with respect to the notes and our other debt;
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increase our vulnerability to general adverse economic and industry conditions;
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require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness and related interest, including indebtedness we may incur in the future, thereby reducing the availability of our cash flow to fund working capital, capital expenditures (including restaurant remodeling obligations under the operating agreement) and other general corporate purposes;
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limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;
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increase our cost of borrowing;
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place us at a competitive disadvantage compared to our competitors that may have less debt; and
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limit our ability to obtain additional financing for working capital, capital expenditures, acquisitions, debt service requirements or general corporate purposes.
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incur additional debt;
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pay dividends and make other distributions on, redeem or repurchase, capital stock;
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make investments or other restricted payments;
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enter into transactions with affiliates;
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engage in sale and leaseback transactions;
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sell all, or substantially all, of our assets;
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create liens on assets to secure debt; or
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effect a consolidation or merger.
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intended to hinder, delay, or defraud any existing or future creditor or contemplated insolvency with a design to prefer one or more creditors to the exclusion in whole or in part of others;
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received less than reasonably equivalent value or fair consideration for the issuance of the notes and:
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was insolvent or rendered insolvent by reason of such issuance or incurrence;
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was engaged in a business or transaction for which such issuer's remaining assets constituted unreasonably small capital; or
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intended to incur, or believed that it would incur, debts beyond the ability to pay those debts as they mature.
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the sum of its debts, including contingent liabilities, was greater than the fair saleable value of all of its assets;
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the present fair saleable value of its assets was less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or
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it could not pay its debts as they become due.
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(Dollars in thousands)
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Actual
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Cash (1)
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$
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57,403
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Debt, including current portion:
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Carrols Restaurant Group 11.25% Senior Secured Second Lien Notes
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$
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150,000
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Capital leases
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10,677
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Lease financing obligations
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1,196
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New revolving credit facility
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—
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Total long-term debt
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161,873
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Total stockholder's equity
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99,546
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Total capitalization
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$
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261,419
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(1)
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Excludes restricted cash of $20.0 million which represents the amount deposited into a collateral account with the administrative agent pursuant to our new revolving credit facility to cash collateralize our obligations under such facility until the date on which our Adjusted Leverage Ratio is less than 6.00x for two consecutive fiscal quarters.
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Historical
Carrols
Restaurant
Group
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Historical
Acquired
Restaurants
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Pro Forma
Adjustments
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Combined
Pro Forma
Carrols
Restaurant
Group
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Revenues:
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Restaurant sales
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$
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377,025
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$
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125,424
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$
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—
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$
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502,449
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Costs and expenses:
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Cost of sales
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119,455
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42,112
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—
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161,567
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Restaurant wages and related expenses
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118,808
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40,897
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—
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159,705
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Restaurant rent expense
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26,010
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5,802
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3,560
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(1)
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35,372
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Other restaurant operating expenses
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60,684
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16,505
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5,644
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(2)
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82,833
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Advertising expense
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15,137
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4,916
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1,042
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(3)
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21,095
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General and administrative
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23,610
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1,942
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—
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25,552
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Depreciation and amortization
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19,215
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7,180
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(2,141
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(4)
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24,254
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Impairment and other lease charges
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252
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—
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—
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252
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Other income
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(236
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—
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—
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(236
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Total operating expenses
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382,935
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119,354
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8,105
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510,394
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Income (loss) from operations
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(5,910
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6,070
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(8,105
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(7,945
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Interest expense
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8,030
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502
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5,990
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(5)
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14,522
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Loss on extinguishment of debt
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1,509
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—
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—
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1,509
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Income (loss) from continuing operations, before income taxes
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(15,449
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5,568
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(14,095
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(23,976
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Benefit for income taxes
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(4,936
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—
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(3,411
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(6)
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(8,347
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Net income (loss) from continuing operations
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(10,513
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5,568
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(10,684
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(15,629
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Income from discontinued operations, net of income taxes
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42
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—
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—
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42
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Net income (loss)
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$
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(10,471
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$
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5,568
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$
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(10,684
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$
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(15,587
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)
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Historical
Carrols
Restaurant
Group
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Historical
Acquired
Restaurants
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Pro Forma
Adjustments
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Combined
Pro Forma
Carrols
Restaurant
Group
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Revenues:
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Restaurant sales
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$
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347,518
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$
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294,880
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$
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—
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$
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642,398
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Costs and expenses:
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Cost of sales
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103,860
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97,176
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—
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201,036
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Restaurant wages and related expenses
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109,155
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92,486
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—
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201,641
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Restaurant rent expense
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22,665
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14,013
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9,916
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(1)
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46,594
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Other restaurant operating expenses
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53,389
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39,237
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13,270
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(2)
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105,896
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Advertising expense
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14,424
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14,126
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(119
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(3)
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28,431
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General and administrative
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20,982
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6,019
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—
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27,001
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Depreciation and amortization
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16,058
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17,532
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(5,983
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(4)
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27,607
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Impairment and other lease charges
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1,293
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—
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—
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1,293
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Other income
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(720
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—
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—
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(720
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Total operating expenses
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341,106
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280,589
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(7)
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17,084
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638,779
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Income from operations
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6,412
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14,291
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(8)
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(17,084
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)
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3,619
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Interest expense
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7,353
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1,736
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9,545
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(5)
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18,634
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Loss on extinguishment of debt
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1,244
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—
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1,661
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(10)
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2,905
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Income (loss) from continuing operations, before income taxes
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(2,185
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)
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12,555
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(9)
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(28,290
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(17,920
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)
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Benefit for income taxes
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(1,661
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—
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(6,294
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(6)
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(7,955
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Net income (loss) from continuing operations
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(524
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)
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12,555
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(9)
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(21,996
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)
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(9,965
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)
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Income from discontinued operations, net of income taxes
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11,742
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—
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—
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11,742
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Net income (loss)
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$
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11,218
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$
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12,555
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(9)
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$
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(21,996
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)
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$
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1,777
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(1)
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Reflects an adjustment to record rent expense on 81 BKC-owned properties leased to us under leases with BKC at a rate based on a percentage of historical restaurant sales for each property and to record rent for the reclassification of leases that BKC previously classified as capital leases to operating leases. The following table summarizes the components of incremental rent expense (in thousands):
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Nine months ended
September 30, 2012
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Year ended
January 1, 2012
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Rent on BKC owned properties
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$
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2,617
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$
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6,152
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Reclassification to rent for restaurant property leases previously classified as capital leases
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943
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3,764
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$
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3,560
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$
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9,916
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(2)
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Represents an adjustment to reflect royalties payable to BKC under the new franchise agreements entered into for the acquired restaurants at the contractual rate of 4.5% of gross restaurant sales.
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(3)
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Represents an adjustment to advertising expense for the acquired restaurants to the contractual rate of 4.75% of restaurant sales under the new franchise agreements entered into in conjunction with the acquisition which is comprised of 4.0% of restaurant sales payable to BKC and investment spending at a maximum assumed rate of 0.75% of restaurant sales in the designated marketing area where the franchised restaurants are located.
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(4)
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Reflects the removal of depreciation expense for buildings and leasehold improvements owned by BKC which are leased by Carrols LLC and are included in the historical depreciation expense of the acquired restaurants. This is offset partially by amortization of the franchise fees over the term of the respective franchise agreements, the amortization of the preliminary valuation of franchise rights to be recorded over an estimated 35 year life and depreciation on capital lease assets acquired. The following summarizes the components of the pro forma adjustment for depreciation expense for the respective periods (in thousands):
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Nine months ended
September 30, 2012
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Year ended
January 1, 2012
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Reversal of depreciation on BKC owned assets
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$
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(3,141
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)
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$
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(8,985
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)
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Amortization of franchise fees
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351
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701
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Depreciation on capital lease assets acquired
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155
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1,314
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Amortization of franchise rights
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494
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987
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$
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(2,141
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)
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$
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(5,983
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)
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(5)
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Total incremental interest expense for the respective periods includes interest on the notes, amortization of deferred financing costs associated with the notes, a reversal of previously recorded interest expense on historical debt and a reversal of prior capital lease interest and recording of interest on capital lease obligations committed to for the acquired restaurants.
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(6)
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The income tax expense (benefit) related to the combined pretax effects of the historical acquired restaurants and pro forma adjustments is based on an incremental tax rate of 40%.
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(7)
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Represents “Total direct costs and expenses” as set forth in the Statements of Revenue and Direct Operating Expenses for the acquired restaurants for the relevant period previously included in our Form 8-K filing on May 18, 2012 and may not include all those items that would be included in Total Operating Expenses in accordance with GAAP.
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(8)
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Represents “Revenues less total direct costs and expenses less interest expense” derived from the Statements of Revenue and Direct Operating Expenses for the acquired restaurants for the relevant period previously included in our Form 8-K filing on May 18, 2012 and may not include all those items that would be included in Income from Continuing Operations in accordance with GAAP.
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(9)
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Represents “Revenues less total direct costs and expenses” as set forth in the Statements of Revenue and Direct Operating Expenses for the acquired restaurants for the relevant period previously included in our Form 8-K filing on May 18, 2012 and may not include all those items that would be included in Income from Continuing Operations before Income Tax or Net Income in accordance with GAAP.
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(10)
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Reflects the write-off of deferred financing costs associated with the prior outstanding indebtedness under the prior Carrols LLC senior secured credit facility.
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we will use our reasonable best efforts to file the registration statement, of which this prospectus forms a part within 180 days after the date we issued the outstanding notes. The exchange notes will have terms substantially identical in all material respects to the outstanding notes, except that the exchange notes will not contain terms with respect to transfer restrictions;
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we will use our reasonable best efforts to cause the registration statement to be declared effective under the Securities Act within 270 days after the date we issued the outstanding notes; and
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we will keep this exchange offer open for at least 30 days, or longer if required by applicable law, after the date on which notice of this exchange offer is mailed to the holders.
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we are not required to file a registration statement in connection with the exchange offer or to consummate the exchange offer solely because the exchange offer is not permitted by applicable law or SEC policy;
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for any reason this exchange offer is not consummated within 270 days after the date we issued the outstanding notes; or
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prior to the date that is 270 days after the date we issued the outstanding notes,
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Á
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the initial purchasers request from us with respect to outstanding notes not eligible to be exchanged for exchange notes in this exchange offer;
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Á
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with respect to any holder of outstanding notes, such holder notifies us that
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such holder is prohibited by applicable law or SEC policy from participating in the exchange offer;
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such holder may not resell the exchange notes acquired by it in the exchange offer to the public without delivering a prospectus and that this prospectus is not appropriate or available for such resales by such holder; or
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such holder is a broker-dealer and holds outstanding notes acquired directly from us or one of our affiliates; or
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Á
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the initial purchasers notify us that they will not receive exchange notes in exchange for outstanding notes constituting any portion of the initial purchasers' unsold allotment,
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to delay accepting for exchange any outstanding notes;
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to extend this exchange offer or to terminate this exchange offer and to refuse to accept outstanding notes not previously accepted if any of the conditions set forth below under “—Conditions” have not been satisfied, by giving oral or written notice of such delay, extension or termination to the exchange agent; or
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subject to the terms of the registration rights agreement, to amend the terms of this exchange offer in any manner.
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the exchange notes to be received will not be tradeable by the holder without restriction under the Securities Act, the Exchange Act, and without material restriction under the blue sky or securities laws of substantially all of the states of the United States; or
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any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to this exchange offer which, in our sole judgment, might materially impair our ability to proceed with this exchange offer or any material adverse development has occurred in any such existing action or proceeding with respect to us or any of our subsidiaries; or
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any law, statute, rule, regulation or interpretation by the staff of the SEC is proposed, adopted or enacted, which, in our sole judgment, might materially impair our ability to proceed with this exchange offer or materially impair the contemplated benefits of this exchange offer to us; or
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any governmental approval has not been obtained, which approval we, in our sole discretion, deem necessary for the consummation of this exchange offer as contemplated by this prospectus.
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the representations described under “—Procedures for Tendering” and “Plan of Distribution”; and
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such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to make available to an appropriate form for registration of the exchange notes under the Securities Act.
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complete, sign and date the letter of transmittal, or a facsimile of the letter of transmittal; have the signature on the letter of transmittal guaranteed if the letter of transmittal so requires; and deliver the letter of transmittal or facsimile to the exchange agent before 5:00 p.m., New York City time, on the expiration date; or
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in lieu of delivering a letter of transmittal, instruct DTC to transmit on behalf of the holder a computer-generated message to the exchange agent in which the holder of the outstanding notes acknowledges and agrees to be bound by the terms of the letter of transmittal, which computer-generated message must be received by the exchange agent before 5:00 p.m., New York City time, on the expiration date.
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the exchange agent must receive the outstanding notes along with the letter of transmittal; or
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the exchange agent must receive, before 5:00 p.m., New York City time, on the expiration date, timely confirmation of book-entry transfer of the outstanding notes into the exchange agent's account at DTC, according to the procedure for book-entry transfer described below; or
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the holder must comply with the guaranteed delivery procedures described below.
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make appropriate arrangements to register ownership of the outstanding notes in the owner's name; or
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obtain a properly completed bond power from the registered holder of outstanding notes.
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by a registered holder who has not completed the box entitled “Special Issuance Instructions” or “Special Delivery Instructions” on the letter of transmittal; or
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for the account of an eligible institution.
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DTC has received an express acknowledgment from a participant in its Automated Tender Offer Program that is tendering outstanding notes that are the subject of the book-entry confirmation;
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the participant confirms on behalf of itself and the beneficial owners of such outstanding notes all provisions of the letter of transmittal (including any representations and warranties) applicable to it and such beneficial owner as fully as if it had completed the information required therein and executed and transmitted the letter of transmittal to the exchange agent, or, in the case of an agent's message relating to guaranteed delivery, that the participant has received and agrees to be bound by the applicable notice of guaranteed delivery; and
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•
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the agreement may be enforced against that participant.
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•
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outstanding notes or a timely book-entry confirmation that outstanding notes have been transferred in the exchange agent's account at DTC; and
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•
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a properly completed and duly executed letter of transmittal and all other required documents or a properly transmitted agent's message.
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•
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any exchange notes that the holder receives will be acquired in the ordinary course of its business;
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•
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the holder has no arrangement or understanding with any person or entity to participate in the distribution of the exchange notes;
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•
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if the holder is not a broker-dealer, that it is not engaged in and does not intend to engage in the distribution of the exchange notes;
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•
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if the holder is a broker-dealer, that it will receive exchange notes for its own account in exchange for outstanding notes that were acquired as a result of market-making activities or other trading activities and that it will deliver a prospectus, as required by law, in connection with any resale of those exchange notes (see the caption “Plan of Distribution”); and
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•
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the holder is not an “affiliate,” as defined in Rule 405 of the Securities Act, of us or, if the holder is an affiliate, it will comply with any applicable registration and prospectus delivery requirements of the Securities Act.
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•
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the tender is made through an eligible institution;
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•
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before 5:00 p.m., New York City time, on the expiration date, the exchange agent receives from the eligible institution either a properly completed and duly executed notice of guaranteed delivery by facsimile transmission, mail or hand delivery, or a properly transmitted agent's message and notice of guaranteed delivery:
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•
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setting forth the name and address of the holder and the registered number(s) and the principal amount of outstanding notes tendered;
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•
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stating that the tender is being made by guaranteed delivery;
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•
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guaranteeing that, within three New York Stock Exchange trading days after the expiration date, the letter of transmittal, or facsimile thereof, together with the outstanding notes or a book-entry transfer confirmation, and any other documents required by the letter of transmittal will be deposited by the eligible institution with the exchange agent; and
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•
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the exchange agent receives the properly completed and executed letter of transmittal, or facsimile thereof, as well as all tendered outstanding notes in proper form for transfer or a book-entry transfer confirmation, and all other documents required by the letter of transmittal, within three New York Stock Exchange trading days after the expiration date.
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•
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specify the name of the person who tendered the outstanding notes to be withdrawn;
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•
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identify the outstanding notes to be withdrawn, including the principal amount of the outstanding notes to be withdrawn; and
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•
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where certificates for outstanding notes have been transmitted, specify the name in which the outstanding notes were registered, if different from that of the withdrawing holder.
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•
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the serial numbers of the particular certificates to be withdrawn; and
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•
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a signed notice of withdrawal with signatures guaranteed by an eligible institution, unless the withdrawing holder is an eligible institution.
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By Registered or Certified Mail:
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By Facsimile (for eligible institutions only):
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By Hand or Overnight Delivery:
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The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
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(732) 667-9408
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The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
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c/o The Bank of New York Mellon Corporation
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c/o The Bank of New York Mellon Corporation
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Corporate Trust Operations -Reorganization Unit
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Corporate Trust Operations - Reorganization Unit
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111 Sanders Creek Parkway
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111 Sanders Creek Parkway
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East Syracuse, New York 13057
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East Syracuse, New York 13057
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Attn: Adam Decapio
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Attn: Adam Decapio
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•
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certificates representing outstanding notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of outstanding notes tendered;
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•
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exchange notes are to be delivered to, or issued in the name of, any person other than the registered holder of the outstanding notes;
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•
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tendered outstanding notes are registered in the name of any person other than the person signing the letter of transmittal; or
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•
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a transfer tax is imposed for any reason other than the exchange of outstanding notes under this exchange offer.
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•
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as set forth in the legend printed on the notes as a consequence of the issuance of the outstanding notes pursuant to the exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws; and
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•
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otherwise set forth in the offering circular distributed in connection with the private offering of the outstanding notes.
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•
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could not rely on the applicable interpretations of the SEC; and
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•
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must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
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•
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such holder is not an “affiliate” of ours within the meaning of Rule 405 under the Securities Act;
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•
|
such exchange notes are acquired in the ordinary course of the holder's business; and
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•
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the holder does not intend to participate in the distribution of such exchange notes.
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•
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cannot rely on the position of the staff of the SEC enunciated in “Exxon Capital Holdings Corporation” (available May 13, 1989), “Morgan Stanley & Co. Incorporated” (available June 5, 1991), “Shearman & Sterling” (available July 2, 1993) or similar interpretive letters; and
|
•
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must comply with the registration and prospectus delivery requirements of the Securities Act in connection with a secondary resale transaction.
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•
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equally in right of payment with all existing and future senior Debt of the Issuer;
|
•
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senior in right of payment to all existing and future subordinated Debt of the Issuer;
|
•
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effectively subordinated to the obligations of the Issuer under the Revolving Credit Agreement and any other First Lien Obligations to the extent of the value of the Collateral securing such obligations; and
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•
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structurally subordinated to all obligations of any non-Guarantor Subsidiaries.
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•
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equally in right of payment with all existing and future senior Debt of the Guarantors;
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•
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senior in right of payment to all existing and future subordinated Debt of the Guarantors; and
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•
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effectively subordinated to the obligations of the Guarantors under the Revolving Credit Agreement and any other First Lien Obligations to the extent of the value of the Collateral securing such obligations.
|
•
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first
, to the payment in full in cash of costs and expenses of First Lien Agent in connection with an enforcement action or Insolvency or Liquidation Proceeding,
|
•
|
second
, to the payment in full in cash or cash collateralization of the First Lien Obligations in accordance with the First Lien Documents,
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•
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third
, to the payment in full in cash of costs and expenses of Second Lien Agent and each representative of any Permitted Additional Pari Passu Obligations in connection with an enforcement action or Insolvency or Liquidation Proceeding (to the extent such enforcement action or Insolvency or Liquidation Proceeding was permitted under the Intercreditor Agreement),
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•
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fourth
, to the payment in full in cash of the Second Lien Obligations in accordance with the Security Documents and the Indenture, and
|
•
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fifth
, to the payment in full in cash of the Excess First Lien Obligations in accordance with the First Lien Documents.
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•
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Pursuant to the Intercreditor Agreement, the Collateral Agent, the Trustee, the Holders of the Notes and the holders of any Permitted Additional Pari Passu Obligations agree that the First Lien Agent has no fiduciary duties to them in respect of the maintenance or preservation of the Collateral. The First Lien Agent agreed in the Intercreditor Agreement to hold, as bailee and non-fiduciary agent of the Collateral Agent, until the Discharge of First Lien Obligations, certain possessory collateral also for the benefit of the Trustee, the Collateral Agent and the holders of the Second Lien Obligations.
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•
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In addition, the Collateral Agent, the Trustee and the Holders of the Notes and the holders of any Permitted Additional Pari Passu Obligations waive any claim against the First Lien Agent and the First Lien Lenders in connection with any actions they may take under the Credit Agreement or with respect to the Collateral. They further waive any right to assert, or request the benefit of, until the Discharge of the First Lien Obligations any marshalling or similar rights that may otherwise be available to them with respect to the Collateral.
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•
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The Intercreditor Agreement provides for the right of the Collateral Agent and the holders of Second Lien Obligations to exercise rights and remedies as unsecured creditors against the Issuer or any Guarantor, subject to certain terms, conditions, waivers and limitations as more fully set forth in the Intercreditor Agreement.
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•
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Pursuant to the Intercreditor Agreement, until the Discharge of the First Lien Obligations the Collateral Agent and the Trustee, for itself and on behalf of the Holders of the Notes and the holders of any Permitted Additional Pari Passu Obligations, irrevocably constitute and appoint the First Lien Agent and any officer or agent of the First Lien Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place of the Trustee, Collateral Agent, Holder of the Notes, holders of any Permitted Additional Pari Passu Obligations or in the First Lien Agent's own name, from time to time in the First Lien Agent's discretion, for the purpose of carrying out the terms of certain sections of the Intercreditor Agreement (including those relating to the release of the Second Priority Liens as permitted thereby, including releases upon sales due to enforcement of remedies or otherwise provided for in the Intercreditor Agreement), to take any and all appropriate action and to execute any and all releases, documents and instruments which may be necessary or desirable to accomplish the purposes of such section of the Intercreditor Agreement, including any financing statements, mortgage releases, intellectual property releases, endorsements or other instruments or transfer or release of such liens.
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•
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Notwithstanding the time, manner, order or method of grant, creation, attachment or perfection of any First Priority Liens or Second Priority Liens, the First Priority Liens will rank senior to any Second Priority Liens on the Collateral. The Collateral for the First Priority Liens, the Second Priority Liens and the Permitted Additional Pari Passu Obligations are intended at all times to be the same;
provided
that Capital Interests of any Subsidiary of the Issuer may secure First Lien Obligations without concurrently securing the Notes and Permitted Additional Pari Passu Obligations to the extent necessary for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 or Rule 3-10 of Regulation S-X under the Exchange Act, due to the fact that such Subsidiary's Capital Interests secure the Notes or Note Guarantees, to file separate financial statements with the Securities and Exchange Commission (or any other governmental agency) as described under “Limitations on Stock Collateral” above and any cash or cash equivalents held in deposit accounts designated for cash collateralizing the Revolving Credit Agreement may also secure First Lien Obligations without concurrently securing the Notes and Permitted Additional Pari Passu Obligations;
provided further
that to the extent that First Lien Agent or the Collateral Agent obtains a Lien in an asset (of a type that is not included in the types of assets included in the Collateral as of the Issue Date or which would not constitute Collateral without a grant of a security interest or Lien separate from the First Lien Documents or Security Documents, as applicable, as in effect immediately prior to obtaining such Lien on such asset) which the other party or parties to the Intercreditor Agreement elects not to obtain after receiving prior written notice thereof in accordance with the Intercreditor Agreement, the Collateral securing the First Lien Obligations and the Second Lien Obligations will not be identical.
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•
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The Trustee, the Collateral Agent, the Holders and the holders of any Permitted Additional Pari Passu Obligations agree that (i) in certain circumstances the holders under the Revolving Credit Agreement are required by the terms thereof to be repaid with proceeds of dispositions of Collateral prior to repayment of the Indenture (subject to certain reinvestment provisions) and (ii) they will not accept payments from such dispositions of Collateral until applied to repayment of the Revolving Credit Agreement as so required. The Trustee, the Collateral Agent, the Holders and the holders of any Permitted Additional Pari Passu Obligations agree that if they receive payments at any time from the Collateral in contravention of the Intercreditor Agreement, they will promptly turn such payments over to First Lien Obligation holders (through the First Lien Agent).
|
•
|
The Intercreditor Agreement permits First Lien Obligations and the Second Lien Obligations to be amended or refinanced subject to certain limitations, including, with respect to the Second Lien Obligations, certain restrictions in the Intercreditor Agreement on amendments to the Indenture and the Security Documents without the consent of the First Lien Agent (with the First Lien Agent only authorized to give such consent upon an affirmative vote of holders of three-fourths of
|
•
|
they will not object to or otherwise contest (and, as necessary, will consent to) the Issuer's or such Guarantor's use of cash collateral if the requisite First Lien Obligation holders consent to such usage
|
•
|
if, in connection with the use of Collateral constituting cash collateral by the Issuer and the Guarantors or debtor-in-possession (“
DIP
”) financing provided to the Issuer and the Guarantors, the First Lien Obligation holders are granted adequate protection in the form of additional or replacement collateral, then the Trustee may seek or request adequate protection in the form of a Lien on such additional or replacement collateral and the First Lien Obligation holders will not object to or otherwise contest (and, as necessary will consent to) such adequate protection, so long as all such replacement or additional Liens are subordinate both to the Liens securing the First Lien Obligations (and are subject to the terms of the Intercreditor Agreement) and to the Liens securing the DIP financing;
|
•
|
if, in connection with any DIP financing or use of cash Collateral the holders of the First Lien Obligations are granted adequate protection in the form of a super priority or other administrative expense claim, then the Trustee may seek, without objection from the holders of the First Lien Obligations, adequate protection in the form of a super priority or other administrative expense claim (as applicable), which super priority or other administrative expense claim, if obtained, will be subordinate to the super priority or administrative expense claim (as applicable) of the holders of the First Lien Obligations. Pursuant to Section 1129(a)(9) of the Bankruptcy Code, any such allowed super priority or other administrative expense claims granted to the holders of the Second Lien Obligations may be paid (x) in cash, to the extent such cash payments are agreed to by the First Lien Agent, or (y) subject to the terms of the Intercreditor Agreement, under any plan of reorganization in any combination of cash, debt, equity or other property having a value on the effective date of such plan equal to the allowed amount of such claims;
|
•
|
if First Lien Obligation holders consent to a DIP financing, the Trustee and the holders of the Second Lien Obligations will be deemed to have consented to, and will not object to, such DIP financing and to the priming of their Liens in connection therewith in the event that the Liens in favor of the First Lien Obligation holders are primed in connection with such DIP financing (
provided
that the holders of the Second Lien Obligations retain their Liens on the Collateral and the aggregate principal amount of the DIP financing,
plus
the aggregate principal amount of First Lien Obligations, does not exceed the sum of (i) the amount permitted under clause (i) of the definition of “Permitted Debt”
plus
(ii) the First Lien DIP Amount);
|
•
|
if the proposed DIP financing (a) is in an aggregate principal amount not in excess of the amount set forth in the parenthetical of the bullet point above, (b) includes interest rates and fees that are commercially reasonable under the circumstances, (c) does not compel Issuer or any Guarantor to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms are set forth in the DIP financing documentation, and (d) does not expressly require the liquidation of the Collateral prior to a default under the DIP financing documentation, the Trustee, the Collateral Agent, the Holders and the holders of any Permitted Additional Pari Passu Obligations will not, directly or indirectly, provide, offer to provide, or support any other DIP financing secured by a Lien senior to or
pari
passu
with the Liens securing the First Lien Obligations;
|
•
|
prior to the Discharge of First Lien Obligations, without the prior written consent of the First Lien Agent and the requisite First Lien Obligation holders, they will not seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding;
|
•
|
they will not oppose any sale or other disposition of the Collateral consented to by the requisite First Lien Obligation holders and shall be deemed to have consented to and released the Liens securing the Second Lien Obligations (
provided
that (i) pursuant to the applicable court order, the Liens of the Second Lien Obligation holders attach to the net proceeds of the disposition with the same priority and validity as the Liens held by the Second Lien Obligation holders on such Collateral, and the Liens remain subject to the terms of the Intercreditor Agreement or (ii) (x) the Liens securing the First Lien Obligations are simultaneously being released and (y) the net proceeds of such sale or other disposition of the Collateral are being used to repay First Lien Obligations, and to the extent paid in full, Second Lien Obligations); notwithstanding the foregoing, the holders of the Second Lien Obligations may raise any objections to such sale or other disposition of the Collateral that could be raised by a creditor whose claims are not secured by Liens on such Collateral so long as such objections are not inconsistent with any other term or provision of the Intercreditor Agreement;
|
•
|
none of the Trustee, the Collateral Agent nor any holder of any Second Lien Obligations may support any plan of reorganization in any Insolvency or Liquidation Proceeding unless such plan (i) pays off in cash in full the First Lien
|
•
|
If it is held in any Insolvency or Liquidation Proceeding that the respective claims of the holders of First Lien Obligations, the holders of Second Lien Obligations, or the holders of any Permitted Additional Pari Passu Obligations in respect of the Collateral constitute claims in the same class (rather than separate classes of secured claims with the relative priorities described in the Intercreditor Agreement), then the Trustee, the holders of Second Lien Obligations, and the holders of any Permitted Additional Pari Passu Obligations will agree that all distributions from the Collateral will be made as if there were separate classes of First Lien Obligations, on the one hand, and Second Lien Obligations and Permitted Additional Pari Passu Obligations, on the other, with the effect being that, to the extent that (i) the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the holders of Second Lien Obligations or any Permitted Additional Pari Passu Obligations thereon), the holders of the First Lien Obligations shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest, and other claims, all amounts owing in respect of post-petition interest, fees, or expenses that is available from the Collateral (regardless of whether any such claims may or may not be allowed or allowable in whole or in part as against the Issuer or any Guarantor in the applicable Insolvency or Liquidation Proceeding(s) pursuant to Section 506(b) of the Bankruptcy Code or otherwise, before any distribution is made in respect of the Second Lien Obligations or any Permitted Additional Pari Passu Obligations from the Collateral, with each holder of Second Lien Obligations and any Permitted Additional Pari Passu Obligations acknowledging and agreeing to turn over to the First Lien Agent amounts otherwise received or receivable by them from the Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries of the holders of the Second Lien Obligations or the holders of any Permitted Additional Pari Passu Obligations;
|
•
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if debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed pursuant to a confirmed plan of reorganization or similar dispositive restructuring plan, both on account of First Lien Obligations and on account of Second Lien Obligations, then, to the extent the debt obligations distributed on account of the First Lien Obligations and on account of the Second Lien Obligations are secured by Liens upon the same property, the provisions of the Intercreditor Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations;
|
•
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until the Discharge of First Lien Obligations, neither the Trustee nor the Collateral Agent, on behalf of itself and the Holders of the Notes or the holders of any Permitted Additional Pari Passu Obligations, will assert or support any claim under Section 506(c) of the Bankruptcy Code senior to or on a parity with the Liens securing the First Lien Obligations for costs and expenses of preserving or disposing of any Collateral (
provided
that this clause will not preclude the Trustee, the Collateral, the Holders of the Notes or the holders of any Permitted Additional Pari Passu Obligations from supporting a plan of reorganization permitted by the preceding bullet point);
|
•
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the Collateral Agent will not object to, oppose, support any objection, or take any other action to impede, the right of any holder of any First Lien Obligation to make an election under Section 1111(b)(2) of the Bankruptcy Code, and the Collateral Agent waives any claim it may have against any holder of any First Lien Obligation arising out of the election by any holder of any First Lien Obligation of the application of Section 1111(6)(2) of the Bankruptcy Code; and
|
•
|
in the event it becomes necessary for First Lien Agent on behalf of the holders of the First Lien Obligations or the Collateral Agent on behalf of the noteholders to commence or become a party to any proceeding or action to enforce the provisions of the Intercreditor Agreement, the court or body before which the same shall be tried shall award to the prevailing party all costs and expenses thereof, including reasonable attorney's fees, the usual and customary and lawfully recoverable court costs, and all other expenses in connection therewith.
|
Year
|
Redemption Price
|
|
2015
|
105.625
|
%
|
2016
|
102.813
|
%
|
2017 and thereafter
|
100
|
%
|
•
|
upon deposit of the Global Exchange Notes, DTC will credit the accounts of the Participants designated by the initial purchasers with portions of the principal amount of the Global Exchange Notes; and
|
•
|
ownership of these interests in the Global Exchange Notes will be shown on, and the transfer of ownership of these interests will be effected only through, records maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Exchange Notes).
|
•
|
any aspect of DTC's records or any Participant's or Indirect Participant's records relating to, or payments made on account of, beneficial ownership interests in the Global Exchange Notes or for maintaining, supervising or reviewing any of DTC's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the Global Exchange Notes; or
|
•
|
any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants.
|
•
|
DTC (1) notifies us that it is unwilling or unable to continue as depositary for the Global Exchange Notes or (2) has ceased to be a clearing agency registered under the Exchange Act and, in either case, we fail to appoint a successor depositary; or
|
•
|
there has occurred and is continuing an event of default with respect to the notes.
|
•
|
the Non-U.S. Holder does not actually or constructively own 10% or more of the total combined voting power of all of our stock;
|
•
|
the Non-U.S. Holder is not a “controlled foreign corporation” with respect to which we are a “related person” within the meaning of the Code; and
|
•
|
the Non-U.S. Holder is not a bank receiving the interest pursuant to a loan agreement entered into in the ordinary course of its trade or business.
|
•
|
the gain is not effectively connected with the conduct by the Non-U.S. Holder of a trade or business within the United States (or, if an applicable income tax treaty so provides, is not attributable to a U.S. permanent establishment (or, in the case of an individual, a fixed base) maintained by the Non-U.S. Holder in the United States); and
|
•
|
if the Non-U.S. Holder is an individual, such Non-U.S. Holder is not present in the U.S. for a period of 183 days or more during the taxable year of the disposition and certain other conditions are met.
|
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PROSPECTUS
|
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, 2012
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Exhibits
|
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2.1
|
Asset Purchase Agreement, dated as of March 26, 2012, among Carrols Restaurant Group, Inc., Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 2.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
3.1
|
Form of Restated Certificate of Incorporation of Carrols Restaurant Group, Inc. (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
3.2
|
Form of Amended and Restated Bylaws of Carrols Restaurant Group, Inc. (incorporated by reference to Exhibit 3.2 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)
|
3.3
|
Amendment to Carrols Restaurant Group, Inc. Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on January 6, 2012)
|
3.4
|
Carrols Restaurant Group, Inc. Certificate of Designation of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
3.5
|
Restated Certificate of Incorporation of Carrols Corporation (incorporated by reference to Exhibit 3.(3)(a) to Carrols Corporation's 1987 Annual Report on Form 10-K)
|
3.6
|
Restated By-laws of Carrols Corporation (incorporated by reference to Exhibit 3.(3)(b) to Carrols Corporation's 1986 Annual Report on Form 10-K)
|
3.7
|
Amendment to Restated Bylaws of Carrols Corporation *
|
3.8
|
Certificate of Formation of Carrols LLC *
|
3.9
|
Certificate of Amendment to Certificate of Formation of Carrols LLC *
|
3.10
|
Operating Agreement of Carrols LLC *
|
3.11
|
First Amendment to Operating Agreement of Carrols LLC *
|
3.12
|
Second Amendment to Operating Agreement of Carrols LLC *
|
4.1
|
Form of Registration Agreement by and among Carrols Restaurant Group, Inc., Atlantic Restaurants, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners II, L.P., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.24 to Carrols Corporation's 1996 Annual Report on Form 10-K)
|
4.2
|
Registration Rights Agreement, relating to the 9% Senior Subordinated Notes, dated as of December 15, 2004 by and among Carrols Corporation, the Guarantors named therein, J.P. Morgan Securities Inc., Banc of America Securities LLC, Lehman Brothers Inc., Wachovia Capital Markets, LLC and SunTrust Capital Markets, Inc. (incorporated by reference to Exhibit 10.1 to Carrols Corporation's Form 8-K filed on December 21, 2004)
|
4.3
|
Form of Stock Certificate for Common Stock (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s Quarterly Report on Form 10-Q filed on May 10, 2012)
|
4.4
|
Indenture governing the 9% Senior Subordinated Notes due 2013, dated as of December 15, 2004, between Carrols Corporation, the Guarantors named therein and The Bank of New York, as Trustee (incorporated by reference to Exhibit 10.2 to Carrols Corporation's Form 8-K filed on December 21, 2004)
|
4.5
|
Form of First Supplement to Indenture by and between Carrols Corporation and The Bank of New York (incorporated by reference to Exhibit 4.8 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
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4.6
|
Second Supplement to Indenture dated as of May 29, 2008 by and among Carrols Corporation, Carrols LLC and The Bank of New York (incorporated by reference to Exhibit 10.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 6, 2008)
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4.7
|
Third Supplement to Indenture dated as of May 4, 2011 by and among Carrols Corporation, Fiesta Restaurant Group, Inc. and The Bank of New York Mellon (formerly known as The Bank of New York) (incorporated by reference to Exhibit 10.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on May 12, 2011)
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4.8
|
Fourth Supplement to Indenture, dated as of August 5, 2011 by and among Carrols Corporation and The Bank of New York Mellon (incorporated by reference to Exhibit 4.4 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 12, 2011)
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4.9
|
Indenture governing the 8.875% Senior Secured Second Lien Notes due 2016, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
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4.10
|
Form of 8.875% Senior Secured Second Lien Note due 2016 (incorporated by reference to Exhibit 4.9)
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4.11
|
Registration Rights Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and Wells Fargo Securities, LLC (incorporated by reference to Exhibit 4.3 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
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4.12
|
Form of Registration Rights Agreement between Carrols Restaurant Group Inc. and Burger King Corporation (incorporated by reference to Exhibit 4.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
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4.13
|
Indenture governing the 11.25% Senior Secured Second Lien Notes due 2018, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
4.14
|
Form of 11.25% Senior Secured Second Lien Note due 2018 (incorporated by reference to Exhibit 4.13)
|
4.15
|
Registration Rights Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and Wells Fargo Securities, LLC (incorporated by reference to Exhibit 4.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
5.1
|
Opinion of Akerman Senterfitt LLP *
|
10.1
|
Carrols Corporation Retirement Savings Plan dated April 1, 1999 (incorporated by reference to Exhibit 10.29 to Carrols Corporation's 1999 Annual Report on Form 10-K) †
|
10.2
|
Carrols Restaurant Group, Inc. 2001 Taco Cabana Long-Term Incentive Plan (incorporated by reference to Exhibit 10.21 to Carrols Corporation's December 31, 2003 Annual Report or 10-K) †
|
10.3
|
Carrols Corporation Retirement Savings plan July 1, 2002 Restatement (incorporated by reference to Exhibit 10.29 to Carrols Corporation's September 29, 2002 Quarterly Report on Form 10-Q) †
|
10.4
|
Addendum incorporating EGTRRA Compliance Amendment to Carrols Corporation Retirement Savings Plan dated September 12, 2002 (incorporated by reference to Exhibit 10.30 to Carrols Corporation's September 29, 2002 Quarterly Report on Form 10-Q) †
|
10.5
|
First Amendment, dated as of January 1, 2004, to Carrols Corporation Retirement Savings Plan (incorporated by reference to Exhibit 10.35 to Carrols Corporation's December 31, 2003 Annual Report on Form 10-K) †
|
10.6
|
Carrols Restaurant Group, Inc. First Amended and Restated 1998 Pollo Tropical Long-Term Incentive Plan (incorporated by reference to Exhibit 10.37 to Carrols Corporation's December 31, 2003 Annual Report on Form 10-K) †
|
10.7
|
Amendment to Carrols Restaurant Group, Inc. 1998 Pollo Tropical Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to Carrols Corporation's Form 8-K filed on November 1, 2004) †
|
10.8
|
Amendment to Carrols Restaurant Group, Inc. 2001 Taco Cabana Long-Term Incentive Plan (incorporated by reference to Exhibit 10.2 to Carrols Corporation's Form 8-K filed on November 1, 2004) †
|
10.9
|
Form of Stock Award Agreement of Carrols Restaurant Group, Inc. dated as of May 3, 2005 (incorporated by reference to exhibit 10.38 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.10
|
Form of Exchange Agreement dated as of May 3, 2005 by and between Carrols Restaurant Group, Inc. and Vituli Family Trust (incorporated by reference to exhibit 10.39 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.11
|
Form of Stock Award Agreement dated as of May 3, 2005 by and between Carrols Restaurant Group, Inc. and Daniel T. Accordino (incorporated by reference to exhibit 10.40 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.12
|
2006 Stock Incentive Plan (incorporated by reference to Exhibit 10.27 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)) †
|
10.13
|
Amendment to Carrols Restaurant Group, Inc. 2006 Stock Incentive Plan, dated as of March 24, 2010 (incorporated by reference to Appendix A of Carrols Restaurant Group, Inc.'s Definitive Proxy Statement filed on April 28, 2011) †
|
10.14
|
Amendment to Carrols Restaurant Group, Inc. 2006 Stock Incentive Plan, dated as of April 11, 2011 (incorporated by reference to Appendix A of Carrols Restaurant Group, Inc.'s Definitive Proxy Statement filed on April 28, 2011) †
|
10.15
|
Form of Change of Control/Severance Agreement (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)) †
|
10.16
|
Form of Agreement, by and among Carrols Restaurant Group, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners, II, L.P., BIB Holdings (Bermuda) Ltd., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.31 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
10.17
|
Form of Amendment No. 1 to Registration Agreement, by and among Carrols Restaurant Group, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners, II, L.P., BIB Holdings (Bermuda) Ltd., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.32 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
10.18
|
Loan Agreement dated as of March 9, 2007 among Carrols Corporation, Wachovia Bank, National Association, Bank of America, N.A., Raymond James Bank, FSB, Wells Fargo Bank National Association, Manufacturers, Traders Trust Company and each of the lenders who are or may from time to time become a party thereto (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.19
|
Pledge Agreement dated as of March 9, 2007 among Carrols Restaurant Group, Inc., Carrols Corporation and the Subsidiary Pledgors (as defined therein) in favor of Wachovia Bank, N.A. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.20
|
Parent Guaranty Agreement dated as of March 9, 2007 by Carrols Restaurant Group, Inc., in favor of Wachovia Bank, N.A. (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.21
|
Subsidiary Guaranty Agreement dated as of March 9, 2007 among each of the Subsidiary Guarantors (as defined in the Subsidiary Guaranty Agreement) in favor of the Agent (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.22
|
First Amendment to Loan Agreement dated as of July 2, 2007 (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 10, 2007.)
|
10.23
|
Credit Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein, Wells Fargo Bank, National Association, as administrative agent, M&T Bank, as syndication agent and Regions Bank, as documentation agent (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.24
|
First Amendment to Credit Agreement dated as of December 14, 2011 among Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 16, 2011)
|
10.25
|
Security Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.26
|
Pledge Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.6 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.27
|
Holdings Pledge Agreement, dated as of August 5, 2011, between Carrols Corporation, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.7 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.28
|
Credit Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.29
|
First Amendment to Credit Agreement dated as of December 14, 2011 among Fiesta Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 16, 2011)
|
10.30
|
First Lien Security Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein, and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.31
|
Second Lien Security Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as collateral agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.32
|
Amended and Restated Employment Agreement dated as of December 13, 2008 by and among Carrols Restaurant Group, Inc., Carrols Corporation and Alan Vituli (incorporated by reference to Exhibit 10.21 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.33
|
Letter dated as of November 1, 2011 between Carrols Restaurant Group, Inc. and Alan Vituli (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Quarterly Report on Form 10-Q filed on November 14, 2011) †
|
10.34
|
Amended and Restated Employment Agreement dated as of December 13, 2008 by and among Carrols Restaurant Group, Inc., Carrols Corporation and Daniel T. Accordino (incorporated by reference to Exhibit 10.22 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.35
|
Employment Agreement dated as of December 22, 2011 among Carrols Restaurant Group, Inc., Carrols LLC and Daniel T. Accordino (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 27, 2011) †
|
10.36
|
Amended and Restated Carrols Corporation and Subsidiaries Deferred Compensation Plan dated December 1, 2008 (incorporated by reference to Exhibit 10.23 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.37
|
Joinder Agreement dated as of May 28, 2008 by and among Carrols Corporation, certain subsidiaries of Carrols Corporation, Carrols Restaurant Group, Inc., Carrols LLC and Wachovia Bank, National Association (incorporated by reference to Exhibit 10.2 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 6, 2008.)
|
10.38
|
Joinder Agreement dated as of May 4, 2011 by and among Carrols Corporation, certain subsidiaries of Carrols Corporation, Carrols Restaurant Group, Inc., Fiesta Restaurant Group, Inc. and Well Fargo Bank, National Association (successor by merger to Wachovia Bank, National Association) (incorporated by reference to Exhibit 10.2 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on May 12, 2011)
|
10.39
|
Registration Rights Agreement, dated as of June 16, 2009, by and among Carrols Restaurant Group, Inc., Jefferies Capital Partners IV LP, Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 4.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 5, 2009)
|
10.40
|
Voting Agreement, dated as of July 27, 2011, between Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV L.P., Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 10.8 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.41
|
Offer Letter, dated as of July 18, 2011, between Carrols Restaurant Group, Inc. and Tim Taft (incorporated by reference to Exhibit 10.9 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011) †
|
10.42
|
Management Services Agreement, dated as of August 5, 2011, between Carrols Corporation and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.10 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.43
|
Management Services Agreement, dated as of August 5, 2011, between Carrols Corporation and Carrols LLC (incorporated by reference to Exhibit 10.11 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.44
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Jefferies Capital Partners IV L.P. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.45
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Jefferies Employee Partners IV LLC (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.46
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and JCP Partners IV LLC (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.47
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Daniel T. Accordino (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.48
|
Separation and Distribution Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.49
|
Tax Matters Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.50
|
Employee Matters Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.51
|
Transition Services Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.52
|
Second Lien Security Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as collateral agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.53
|
First Lien Security Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein, and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.54
|
Amendment No. 1 to Asset Purchase Agreement, dated as of May 30, 2012, among Carrols Restaurant Group, Inc., Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.55
|
Operating Agreement, dated as of May 30, 2012, between Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.56
|
First Amendment to the Voting Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV L.P., Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.57
|
Credit Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.6 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
12.1
|
Computation of Ratio of Earnings to Fixed Charges *
|
21.1
|
List of Subsidiaries *
|
23.1
|
Consent of Deloitte & Touche LLP *
|
23.2
|
Consent of Akerman Senterfitt LLP (included in Exhibit 5.1) *
|
24.1
|
Powers of Attorney (included in signature pages hereto) *
|
25.1
|
Form T-1 Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee *
|
99.1
|
Consent of Technomic, Inc. *
|
99.2
|
Form of Letter of Transmittal *
|
99.3
|
Form of Notice of Guaranteed Delivery *
|
99.4
|
Form of Institutions Letter *
|
99.5
|
Form of Client Letter *
|
*
|
Filed herewith.
|
†
|
Compensatory plan or arrangement
|
(b)
|
Financial Statements.
|
(amounts in thousands)
|
|
Column B
|
|
Column C
|
|
Column D
|
|
Column E
|
||||||||||
Description
|
|
Balance at Beginning of Period
|
|
Charged to Costs and Expenses
|
|
Charged to other accounts
|
|
Deductions
|
|
Balance at End of Period
|
||||||||
Year ended January 1, 2012:
|
|
|
|
|
|
|
|
|
|
|
||||||||
Deferred income tax valuation allowance
|
|
$
|
549
|
|
|
$
|
354
|
|
|
—
|
|
|
—
|
|
|
$
|
903
|
|
Year ended January 2, 2011:
|
|
|
|
|
|
|
|
|
|
|
||||||||
Deferred income tax valuation allowance
|
|
$
|
563
|
|
|
$
|
(14
|
)
|
|
—
|
|
|
—
|
|
|
$
|
549
|
|
Year ended January 3, 2010:
|
|
|
|
|
|
|
|
|
|
|
||||||||
Deferred income tax valuation allowance
|
|
$
|
575
|
|
|
$
|
(12
|
)
|
|
—
|
|
|
—
|
|
|
$
|
563
|
|
Item 22.
|
Undertakings
|
(i)
|
The undersigned Registrants hereby undertake:
|
(ii)
|
The undersigned Registrants hereby undertake that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrants' annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
(iii)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrants pursuant to the foregoing provisions, or otherwise, the Registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrants of expenses incurred or paid by a director, officer or controlling person of the Registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrants will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of approximate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
|
(iv)
|
The undersigned Registrants hereby undertake to respond to requests for information that is incorporated by reference into the prospectus pursuant to items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporating documents by first class mail or other equally prompt means. This includes information contained in the documents filed subsequent to the effective date of the Registration Statement through the date of responding to the request.
|
(v)
|
The undersigned Registrants hereby undertake to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the Registration Statement when it became effective.
|
Carrols Restaurant Group, Inc.
|
||
|
|
|
By:
|
/s/ William E. Myers
|
|
|
Name:
|
William E. Myers
|
|
Title:
|
Vice President, General Counsel and Secretary
|
* By:
|
|
/s/ William E. Myers
|
|
|
William E. Myers
Attorney-in-Fact
|
Carrols Corporation
|
||
|
|
|
By:
|
/s/ William E. Myers
|
|
|
Name:
|
William E. Myers
|
|
Title:
|
Vice President, General Counsel and Secretary
|
Signature
|
|
Title
|
|
|
|
*
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
Daniel T. Accordino
|
|
|
|
|
|
*
|
|
Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
|
Paul R. Flanders
|
|
|
|
|
|
*
|
|
Vice President, Controller
|
Timothy J. LaLonde
|
|
|
|
|
|
/s/ William E. Myers
|
|
Vice President, General Counsel and Secretary
|
William E. Myers
|
|
|
|
|
|
*
|
|
Chairman of the Board of Directors
|
Clayton E. Wilhite
|
|
|
|
|
|
*
|
|
Director
|
Joel M. Handel
|
|
|
|
|
|
*
|
|
Director
|
David S. Harris
|
|
|
|
|
|
*
|
|
Director
|
Nicholas Daraviras
|
|
|
* By:
|
|
/s/ William E. Myers
|
|
|
William E. Myers
Attorney-in-Fact
|
Carrols LLC
|
||
|
|
|
By:
|
/s/ William E. Myers
|
|
|
Name:
|
William E. Myers
|
|
Title:
|
Vice President, General Counsel and Secretary
|
Signature
|
|
Title
|
|
|
|
*
|
|
President and Chief Executive Officer
(Principal Executive Officer)
|
Daniel T. Accordino
|
|
|
|
|
|
*
|
|
Vice President, Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer)
|
Paul R. Flanders
|
|
|
|
|
|
/s/ William E. Myers
|
|
Vice President, General Counsel and Secretary
|
William E. Myers
|
|
|
|
|
|
* By:
|
|
/s/ William E. Myers
|
|
|
William E. Myers
Attorney-in-Fact
|
Exhibits
|
|
2.1
|
Asset Purchase Agreement, dated as of March 26, 2012, among Carrols Restaurant Group, Inc., Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 2.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
3.1
|
Form of Restated Certificate of Incorporation of Carrols Restaurant Group, Inc. (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
3.2
|
Form of Amended and Restated Bylaws of Carrols Restaurant Group, Inc. (incorporated by reference to Exhibit 3.2 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)
|
3.3
|
Amendment to Carrols Restaurant Group, Inc. Amended and Restated Bylaws (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on January 6, 2012)
|
3.4
|
Carrols Restaurant Group, Inc. Certificate of Designation of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
3.5
|
Restated Certificate of Incorporation of Carrols Corporation (incorporated by reference to Exhibit 3.(3)(a) to Carrols Corporation's 1987 Annual Report on Form 10-K)
|
3.6
|
Restated By-laws of Carrols Corporation (incorporated by reference to Exhibit 3.(3)(b) to Carrols Corporation's 1986 Annual Report on Form 10-K)
|
3.7
|
Amendment to Restated Bylaws of Carrols Corporation *
|
3.8
|
Certificate of Formation of Carrols LLC *
|
3.9
|
Certificate of Amendment to Certificate of Formation of Carrols LLC *
|
3.10
|
Operating Agreement of Carrols LLC *
|
3.11
|
First Amendment to Operating Agreement of Carrols LLC *
|
3.12
|
Second Amendment to Operating Agreement of Carrols LLC *
|
4.1
|
Form of Registration Agreement by and among Carrols Restaurant Group, Inc., Atlantic Restaurants, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners II, L.P., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.24 to Carrols Corporation's 1996 Annual Report on Form 10-K)
|
4.2
|
Registration Rights Agreement, relating to the 9% Senior Subordinated Notes, dated as of December 15, 2004 by and among Carrols Corporation, the Guarantors named therein, J.P. Morgan Securities Inc., Banc of America Securities LLC, Lehman Brothers Inc., Wachovia Capital Markets, LLC and SunTrust Capital Markets, Inc. (incorporated by reference to Exhibit 10.1 to Carrols Corporation's Form 8-K filed on December 21, 2004)
|
4.3
|
Form of Stock Certificate for Common Stock (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s Quarterly Report on Form 10-Q filed on May 10, 2012)
|
4.4
|
Indenture governing the 9% Senior Subordinated Notes due 2013, dated as of December 15, 2004, between Carrols Corporation, the Guarantors named therein and The Bank of New York, as Trustee (incorporated by reference to Exhibit 10.2 to Carrols Corporation's Form 8-K filed on December 21, 2004)
|
4.5
|
Form of First Supplement to Indenture by and between Carrols Corporation and The Bank of New York (incorporated by reference to Exhibit 4.8 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
4.6
|
Second Supplement to Indenture dated as of May 29, 2008 by and among Carrols Corporation, Carrols LLC and The Bank of New York (incorporated by reference to Exhibit 10.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 6, 2008)
|
4.7
|
Third Supplement to Indenture dated as of May 4, 2011 by and among Carrols Corporation, Fiesta Restaurant Group, Inc. and The Bank of New York Mellon (formerly known as The Bank of New York) (incorporated by reference to Exhibit 10.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on May 12, 2011)
|
4.8
|
Fourth Supplement to Indenture, dated as of August 5, 2011 by and among Carrols Corporation and The Bank of New York Mellon (incorporated by reference to Exhibit 4.4 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 12, 2011)
|
4.9
|
Indenture governing the 8.875% Senior Secured Second Lien Notes due 2016, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
4.10
|
Form of 8.875% Senior Secured Second Lien Note due 2016 (incorporated by reference to Exhibit 4.9)
|
4.11
|
Registration Rights Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and Wells Fargo Securities, LLC (incorporated by reference to Exhibit 4.3 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
4.12
|
Form of Registration Rights Agreement between Carrols Restaurant Group Inc. and Burger King Corporation (incorporated by reference to Exhibit 4.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
4.13
|
Indenture governing the 11.25% Senior Secured Second Lien Notes due 2018, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as trustee (incorporated by reference to Exhibit 4.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
4.14
|
Form of 11.25% Senior Secured Second Lien Note due 2018 (incorporated by reference to Exhibit 4.13)
|
4.15
|
Registration Rights Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and Wells Fargo Securities, LLC (incorporated by reference to Exhibit 4.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
5.1
|
Opinion of Akerman Senterfitt LLP *
|
10.1
|
Carrols Corporation Retirement Savings Plan dated April 1, 1999 (incorporated by reference to Exhibit 10.29 to Carrols Corporation's 1999 Annual Report on Form 10-K) †
|
10.2
|
Carrols Restaurant Group, Inc. 2001 Taco Cabana Long-Term Incentive Plan (incorporated by reference to Exhibit 10.21 to Carrols Corporation's December 31, 2003 Annual Report or 10-K) †
|
10.3
|
Carrols Corporation Retirement Savings plan July 1, 2002 Restatement (incorporated by reference to Exhibit 10.29 to Carrols Corporation's September 29, 2002 Quarterly Report on Form 10-Q) †
|
10.4
|
Addendum incorporating EGTRRA Compliance Amendment to Carrols Corporation Retirement Savings Plan dated September 12, 2002 (incorporated by reference to Exhibit 10.30 to Carrols Corporation's September 29, 2002 Quarterly Report on Form 10-Q) †
|
10.5
|
First Amendment, dated as of January 1, 2004, to Carrols Corporation Retirement Savings Plan (incorporated by reference to Exhibit 10.35 to Carrols Corporation's December 31, 2003 Annual Report on Form 10-K) †
|
10.6
|
Carrols Restaurant Group, Inc. First Amended and Restated 1998 Pollo Tropical Long-Term Incentive Plan (incorporated by reference to Exhibit 10.37 to Carrols Corporation's December 31, 2003 Annual Report on Form 10-K) †
|
10.7
|
Amendment to Carrols Restaurant Group, Inc. 1998 Pollo Tropical Long-Term Incentive Plan (incorporated by reference to Exhibit 10.1 to Carrols Corporation's Form 8-K filed on November 1, 2004) †
|
10.8
|
Amendment to Carrols Restaurant Group, Inc. 2001 Taco Cabana Long-Term Incentive Plan (incorporated by reference to Exhibit 10.2 to Carrols Corporation's Form 8-K filed on November 1, 2004) †
|
10.9
|
Form of Stock Award Agreement of Carrols Restaurant Group, Inc. dated as of May 3, 2005 (incorporated by reference to exhibit 10.38 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.10
|
Form of Exchange Agreement dated as of May 3, 2005 by and between Carrols Restaurant Group, Inc. and Vituli Family Trust (incorporated by reference to exhibit 10.39 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.11
|
Form of Stock Award Agreement dated as of May 3, 2005 by and between Carrols Restaurant Group, Inc. and Daniel T. Accordino (incorporated by reference to exhibit 10.40 to Carrols Corporation's 2004 Annual Report on Form 10-K) †
|
10.12
|
2006 Stock Incentive Plan (incorporated by reference to Exhibit 10.27 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)) †
|
10.13
|
Amendment to Carrols Restaurant Group, Inc. 2006 Stock Incentive Plan, dated as of March 24, 2010 (incorporated by reference to Appendix A of Carrols Restaurant Group, Inc.'s Definitive Proxy Statement filed on April 28, 2011) †
|
10.14
|
Amendment to Carrols Restaurant Group, Inc. 2006 Stock Incentive Plan, dated as of April 11, 2011 (incorporated by reference to Appendix A of Carrols Restaurant Group, Inc.'s Definitive Proxy Statement filed on April 28, 2011) †
|
10.15
|
Form of Change of Control/Severance Agreement (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524)) †
|
10.16
|
Form of Agreement, by and among Carrols Restaurant Group, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners, II, L.P., BIB Holdings (Bermuda) Ltd., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.31 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
10.17
|
Form of Amendment No. 1 to Registration Agreement, by and among Carrols Restaurant Group, Inc., Madison Dearborn Capital Partners, L.P., Madison Dearborn Capital Partners, II, L.P., BIB Holdings (Bermuda) Ltd., Alan Vituli, Daniel T. Accordino and Joseph A. Zirkman (incorporated by reference to Exhibit 10.32 to Carrols Restaurant Group Inc.'s Registration Statement on Form S-1, as amended (Registration No. 333-137524))
|
10.18
|
Loan Agreement dated as of March 9, 2007 among Carrols Corporation, Wachovia Bank, National Association, Bank of America, N.A., Raymond James Bank, FSB, Wells Fargo Bank National Association, Manufacturers, Traders Trust Company and each of the lenders who are or may from time to time become a party thereto (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.19
|
Pledge Agreement dated as of March 9, 2007 among Carrols Restaurant Group, Inc., Carrols Corporation and the Subsidiary Pledgors (as defined therein) in favor of Wachovia Bank, N.A. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.20
|
Parent Guaranty Agreement dated as of March 9, 2007 by Carrols Restaurant Group, Inc., in favor of Wachovia Bank, N.A. (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.21
|
Subsidiary Guaranty Agreement dated as of March 9, 2007 among each of the Subsidiary Guarantors (as defined in the Subsidiary Guaranty Agreement) in favor of the Agent (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Form 8-K filed on March 13, 2007)
|
10.22
|
First Amendment to Loan Agreement dated as of July 2, 2007 (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 10, 2007.)
|
10.23
|
Credit Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein, Wells Fargo Bank, National Association, as administrative agent, M&T Bank, as syndication agent and Regions Bank, as documentation agent (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.24
|
First Amendment to Credit Agreement dated as of December 14, 2011 among Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 16, 2011)
|
10.25
|
Security Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.26
|
Pledge Agreement, dated as of August 5, 2011, between Carrols LLC, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.6 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.27
|
Holdings Pledge Agreement, dated as of August 5, 2011, between Carrols Corporation, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.7 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.28
|
Credit Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.29
|
First Amendment to Credit Agreement dated as of December 14, 2011 among Fiesta Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 16, 2011)
|
10.30
|
First Lien Security Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein, and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.31
|
Second Lien Security Agreement, dated as of August 5, 2011, between Fiesta Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as collateral agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.32
|
Amended and Restated Employment Agreement dated as of December 13, 2008 by and among Carrols Restaurant Group, Inc., Carrols Corporation and Alan Vituli (incorporated by reference to Exhibit 10.21 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.33
|
Letter dated as of November 1, 2011 between Carrols Restaurant Group, Inc. and Alan Vituli (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Quarterly Report on Form 10-Q filed on November 14, 2011) †
|
10.34
|
Amended and Restated Employment Agreement dated as of December 13, 2008 by and among Carrols Restaurant Group, Inc., Carrols Corporation and Daniel T. Accordino (incorporated by reference to Exhibit 10.22 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.35
|
Employment Agreement dated as of December 22, 2011 among Carrols Restaurant Group, Inc., Carrols LLC and Daniel T. Accordino (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on December 27, 2011) †
|
10.36
|
Amended and Restated Carrols Corporation and Subsidiaries Deferred Compensation Plan dated December 1, 2008 (incorporated by reference to Exhibit 10.23 to Carrols Restaurant Group's and Carrols Corporation's 2008 Annual Report on Form 10-K) †
|
10.37
|
Joinder Agreement dated as of May 28, 2008 by and among Carrols Corporation, certain subsidiaries of Carrols Corporation, Carrols Restaurant Group, Inc., Carrols LLC and Wachovia Bank, National Association (incorporated by reference to Exhibit 10.2 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 6, 2008.)
|
10.38
|
Joinder Agreement dated as of May 4, 2011 by and among Carrols Corporation, certain subsidiaries of Carrols Corporation, Carrols Restaurant Group, Inc., Fiesta Restaurant Group, Inc. and Well Fargo Bank, National Association (successor by merger to Wachovia Bank, National Association) (incorporated by reference to Exhibit 10.2 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on May 12, 2011)
|
10.39
|
Registration Rights Agreement, dated as of June 16, 2009, by and among Carrols Restaurant Group, Inc., Jefferies Capital Partners IV LP, Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 4.1 of Carrols Restaurant Group, Inc.'s and Carrols Corporation's Form 10-Q filed on August 5, 2009)
|
10.40
|
Voting Agreement, dated as of July 27, 2011, between Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV L.P., Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 10.8 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.41
|
Offer Letter, dated as of July 18, 2011, between Carrols Restaurant Group, Inc. and Tim Taft (incorporated by reference to Exhibit 10.9 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011) †
|
10.42
|
Management Services Agreement, dated as of August 5, 2011, between Carrols Corporation and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.10 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.43
|
Management Services Agreement, dated as of August 5, 2011, between Carrols Corporation and Carrols LLC (incorporated by reference to Exhibit 10.11 to Carrols Restaurant Group, Inc.'s and Carrols Corporation's Quarterly Report on Form 10-Q filed on August 12, 2011)
|
10.44
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Jefferies Capital Partners IV L.P. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.45
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Jefferies Employee Partners IV LLC (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.46
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and JCP Partners IV LLC (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.47
|
Voting Agreement, dated as of March 26, 2012, between Burger King Corporation and Daniel T. Accordino (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on March 28, 2012)
|
10.48
|
Separation and Distribution Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.49
|
Tax Matters Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.50
|
Employee Matters Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.51
|
Transition Services Agreement dated as of April 24, 2012 among Carrols Restaurant Group, Inc., Carrols Corporation, Carrols LLC and Fiesta Restaurant Group, Inc. (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on April 26, 2012)
|
10.52
|
Second Lien Security Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein and The Bank of New York Mellon Trust Company, N.A., as collateral agent (incorporated by reference to Exhibit 10.1 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.53
|
First Lien Security Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein, and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.2 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.54
|
Amendment No. 1 to Asset Purchase Agreement, dated as of May 30, 2012, among Carrols Restaurant Group, Inc., Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 10.3 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.55
|
Operating Agreement, dated as of May 30, 2012, between Carrols LLC and Burger King Corporation (incorporated by reference to Exhibit 10.4 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.56
|
First Amendment to the Voting Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc. and Jefferies Capital Partners IV L.P., Jefferies Employee Partners IV LLC and JCP Partners IV LLC (incorporated by reference to Exhibit 10.5 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
10.57
|
Credit Agreement, dated as of May 30, 2012, between Carrols Restaurant Group, Inc., the guarantors named therein, the lenders named therein and Wells Fargo Bank, National Association, as administrative agent (incorporated by reference to Exhibit 10.6 to Carrols Restaurant Group, Inc.'s Current Report on Form 8-K filed on June 1, 2012)
|
12.1
|
Computation of Ratio of Earnings to Fixed Charges *
|
21.1
|
List of Subsidiaries *
|
23.1
|
Consent of Deloitte & Touche LLP *
|
23.2
|
Consent of Akerman Senterfitt LLP (included in Exhibit 5.1) *
|
24.1
|
Powers of Attorney (included in signature pages hereto) *
|
25.1
|
Form T-1 Statement of Eligibility under Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee *
|
99.1
|
Consent of Technomic, Inc. *
|
99.2
|
Form of Letter of Transmittal *
|
99.3
|
Form of Notice of Guaranteed Delivery *
|
99.4
|
Form of Institutions Letter *
|
99.5
|
Form of Client Letter *
|
*
|
Filed herewith.
|
†
|
Compensatory plan or arrangement
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:25 PM 05/13/2008
FILED 05:25 PM 05/13/2008
SRV 080542171 - 4547682 FILE
|
|
|
|
/s/ William E. Myers
|
|
William E. Myers
|
|
Authorized Person
|
|
Carrols Corporation
|
|
|
|
|
|
By:
/s/ William E. Myers
|
|
Name: William E. Myers
|
|
Title: Vice President
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 10:54 AM 06/23/2008
FILED 10:43 AM 06/23/2008
SRV 080717103 - 4547682 FILE
|
2.
|
The Certificate of Formation of the limited liability company is hereby amended as follows:
|
To add a Section 3 thereto as follows:
3. The single purpose for which the limited liability company is formed is solely for the purpose of operating Burger King Restaurants and to do any and all things necessary, convenient or incidental to the achievement of the foregoing single purpose under the Delaware Limited Liability Company Act.
|
|
|
|
By:
/s/ William E. Myers
|
|
Authorized Person(s)
|
|
|
|
Name:
William E. Myers
|
|
Print or Type
|
|
|
|
CARROLS CORPORATION
|
|
|
|
By: /s/ William E. Myers
|
|
Name: William E. Myers, Vice President
|
|
Member
|
State of Delaware
Secretary of State
Division of Corporations
Delivered 05:25 PM 05/13/2008
FILED 05:25 PM 05/13/2008
SRV 080542171 - 4547682 FILE
|
|
/s/ William E. Myers
|
|
William E. Myers
|
|
Authorized Person
|
|
|
|
Carrols Corporation
|
|
|
|
By: /s/ William E. Myers
|
|
Name: William E. Myers
|
|
Title: Vice President
|
|
|
|
CARROLS CORPORATION
|
|
|
|
By: /s/ William E. Myers
|
|
Name: William E. Myers, Vice President
|
|
Member
|
|
|
|
CARROLS CORPORATION
|
|
|
By:
|
/s/ Joseph A. Zirkman
|
|
Name: Joseph A. Zirkman
|
|
Title: Vice President, General Counsel and Secretary
|
|
Akerman Senterfitt LLP
|
335 Madison Avenue
|
|
Suite 2600
|
|
New York, NY 10017
|
|
Tel: 212.880.3800
|
|
Fax: 212.880.8965
|
Re:
|
Carrols Restaurant Group, Inc.
|
(1)
|
the Registration Statement and the Prospectus;
|
(2)
|
the Indenture, including the Exchange Note Guarantees contained therein;
|
(3)
|
a specimen of the Exchange Notes (the “
Specimen
,” and collectively with the Indenture and the Exchange Note Guarantees, the “
Transaction Documents
”);
|
(4)
|
the organizational documents of the Company and the Subsidiary Guarantors, as presently in effect;
|
(5)
|
resolutions adopted by the board of directors of the Company and by the board of directors or managers, as applicable, of the Subsidiary Guarantors relating to the Exchange Offer, the Registration Statement and related matters; and
|
(6)
|
Certificates of Good Standing for the Company and for each of the Subsidiary Guarantors issued by the Department of State of the State of Delaware (the “Certificates of Good Standing”).
|
(1)
|
The Exchange Notes have been duly authorized, and when the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Indenture and, when issued upon consummation of the Exchange Offer as set forth in the Registration Statement, the Exchange Notes will be legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefit of the Indenture; and
|
(2)
|
When the Exchange Notes have been duly executed and delivered by the Company and authenticated by the Trustee in accordance with the terms of the Indenture upon consummation of the Exchange Offer as set forth in the Registration Statement, each Exchange Note Guaranty will be the legal, valid and binding obligation of the Subsidiary Guarantor which issued such Exchange Note Guarantee, enforceable against such Subsidiary Guarantor in accordance with its terms.
|
|
Year Ended
|
||||||||||||||
|
December 30, 2007
|
December 28, 2008
|
January 3, 2010
|
January 2, 2011
|
January 1, 2012
|
||||||||||
Earnings:
|
|
|
|
|
|
||||||||||
Income from continuing operations before income tax
|
$
|
6,755
|
|
$
|
15,853
|
|
$
|
17,004
|
|
$
|
2,617
|
|
$
|
(2,185
|
)
|
Add fixed charges:
|
|
|
|
|
|
||||||||||
Interest expense, including amortization of deferred financing costs
|
14,898
|
|
12,125
|
|
8,907
|
|
8,957
|
|
7,353
|
|
|||||
Portion of rents representative of interest factor
|
7,928
|
|
8,102
|
|
7,994
|
|
7,723
|
|
7,555
|
|
|||||
Total earnings
|
$
|
29,581
|
|
$
|
36,080
|
|
$
|
33,905
|
|
$
|
19,297
|
|
$
|
12,723
|
|
Fixed charges:
|
|
|
|
|
|
||||||||||
Interest expense, including amortization of deferred financing costs
|
$
|
14,898
|
|
$
|
12,125
|
|
$
|
8,907
|
|
$
|
8,957
|
|
$
|
7,353
|
|
Portion of rents representative of interest factor
|
7,928
|
|
8,102
|
|
7,994
|
|
7,723
|
|
7,555
|
|
|||||
|
$
|
22,826
|
|
$
|
20,227
|
|
$
|
16,901
|
|
$
|
16,680
|
|
$
|
14,908
|
|
Ratio of earnings to fixed charges (1)
|
1.30x
|
|
1.78x
|
|
2.01x
|
|
1.16x
|
|
—
|
|
Name
|
|
State of Incorporation or Organization
|
|
|
|
|
|
|
Carrols Corporation.
|
|
Delaware
|
|
|
|
Carrols LLC.
|
|
Delaware
|
|
|
|
(Jurisdiction of incorporation
if not a U.S. national bank)
|
95-3571558
(I.R.S. employer
identification no.)
|
400 South Hope Street
Suite 400
Los Angeles, California
(Address of principal executive offices)
|
90071
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
16-1287774
(I.R.S. employer
identification no.)
|
968 James Street
Syracuse, New York
(Address of principal executive offices)
|
13203
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
16-0958146
(I.R.S. employer
identification no.)
|
968 James Street
Syracuse, New York
(Address of principal executive offices)
|
13203
(Zip code)
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
26-2614958
(I.R.S. employer
identification no.)
|
968 James Street
Syracuse, New York
(Address of principal executive offices)
|
13203
(Zip code)
|
(a)
|
Name and address of each examining or supervising authority to which it is subject.
|
Name
|
Address
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219
|
|
|
Federal Reserve Bank
|
San Francisco, CA 94105
|
|
|
|
|
Federal Deposit Insurance Corporation
|
Washington, DC 20429
|
2.
|
Affiliations with Obligor.
|
16.
|
List of Exhibits.
|
1.
|
A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form T-1 filed with Registration Statement No. 333-152875).
|
2.
|
A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with Registration Statement No. 333-121948).
|
3.
|
A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed with Registration Statement No. 333-152875).
|
4.
|
A copy of the existing by‑laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-162713).
|
6.
|
The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-152875).
|
7.
|
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
|
|
|
|
Dollar Amounts
|
||
|
|
|
|
in Thousands
|
||
ASSETS
|
|
|
|
|
||
Cash and balances due from
|
|
|
|
|
||
depository institutions:
|
|
|
|
|
||
Noninterest-bearing balances
|
|
|
752
|
|
||
and currency and coin
|
|
|||||
Interest-bearing balances
|
384
|
|
||||
Securities:
|
|
|
|
|
||
Held-to-maturity securities
|
0
|
|
||||
Available-for-sale securities
|
664,282
|
|
||||
Federal funds sold and securities
|
|
|
|
|||
purchased under agreements to resell:
|
|
|
||||
Federal funds sold
|
66,500
|
|
||||
Securities purchased under agreements to resell
|
0
|
|||||
Loans and lease financing receivables:
|
|
|
||||
Loans and leases held for sale
|
0
|
|||||
Loans and leases,
|
|
|
|
|||
net of unearned income
|
0
|
|
||||
LESS: Allowance for loan and
|
|
|
||||
lease losses
|
0
|
|
||||
Loans and leases, net of unearned
|
|
|
||||
income and allowance
|
0
|
|||||
Trading assets
|
0
|
|
||||
Premises and fixed assets (including
|
|
|
|
|||
capitalized leases)
|
6,314
|
|
||||
Other real estate owned
|
0
|
|||||
Investments in unconsolidated
|
|
|
|
|||
subsidiaries and associated
|
|
|
|
|||
companies
|
0
|
|||||
Direct and indirect investments in real estate ventures
|
0
|
|||||
Intangible assets:
|
|
|
|
|
||
Goodwill
|
856,313
|
|
||||
Other intangible assets
|
166,282
|
|
||||
Other assets
|
127,866
|
|
||||
Total assets
|
$
|
1,888,693
|
|
LIABILITIES
|
|
|
|
|
|||
Deposits:
|
|
|
|
|
|||
In domestic offices
|
535
|
|
|||||
Noninterest-bearing
|
535
|
|
|
|
|||
Interest-bearing
|
0
|
|
|||||
Not Applicable
|
|
|
|
|
|||
Federal funds purchased and securities
|
|
|
|
||||
sold under agreements to repurchase:
|
|
|
|||||
Federal funds purchased
|
0
|
||||||
Securities sold under agreements to repurchase
|
0
|
||||||
Trading liabilities
|
0
|
||||||
Other borrowed money:
|
|
|
|
||||
(includes mortgage indebtedness
|
|
|
|||||
and obligations under capitalized
|
|
|
|||||
leases)
|
0
|
||||||
Not applicable
|
|
|
|||||
Not applicable
|
|
|
|||||
Subordinated notes and debentures
|
0
|
||||||
Other liabilities
|
230,606
|
|
|||||
Total liabilities
|
231,141
|
|
|||||
Not applicable
|
|
|
|
|
|||
|
|
|
|
|
|||
EQUITY CAPITAL
|
|
|
|
||||
Perpetual preferred stock and related surplus
|
0
|
|
|||||
Common stock
|
1,000
|
|
|||||
Surplus (exclude all surplus related to preferred stock)
|
1,121,520
|
|
|||||
Not available
|
|
|
|
||||
Retained earnings
|
530,026
|
|
|||||
Accumulated other comprehensive income
|
5,006
|
|
|||||
Other equity capital components
|
0
|
||||||
Not available
|
|
|
|
|
|||
Total bank equity capital
|
1,657,552
|
|
|||||
Noncontrolling (minority) interests in consolidated subsidiaries
|
0
|
|
|||||
Total equity capital
|
1,657,552
|
|
|||||
Total liabilities and equity capital
|
$
|
1,888,693
|
|
|
|
|
Technomic, Inc.
|
|
|
|
By:
/s/ Chris Urban
|
|
Name: Chris Urban
|
|
Title: Director
|
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON , 2012 UNLESS THE OFFER IS EXTENDED
|
(1)
|
Outstanding Notes or a timely book-entry confirmation that Outstanding Notes have been transferred in the Exchange Agent's account at The Depository Trust Company (“DTC”); and
|
(2)
|
this Letter of Transmittal, properly completed and duly executed, and all other required documents or a properly transmitted agent's message. “Agent's message” means a message, transmitted by DTC and received by the Exchange Agent and forming part of a book-entry confirmation, which states that DTC has received an express acknowledgment from a participant tendering Outstanding Notes that are the subject of the book-entry confirmation that the participant has received and agrees to be bound by the terms of the Letter of Transmittal, and that the Company may enforce that agreement against the participant.
|
¨
|
CHECK HERE IF TENDERED OUTSTANDING NOTES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
|
Name of Tendering Institution:
|
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Account Number:
|
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Transaction Code Number:
|
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Name of Registered Holder (s):
|
|
|||
Name of Eligible Institution that Guaranteed Delivery:
|
|
|||
If delivery by book-entry transfer-
|
|
|||
Account Number:
|
|
|||
Transaction Code Number:
|
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Name:
|
|
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Address:
|
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|
SPECIAL REGISTRATION INSTRUCTIONS
|
||
To be completed ONLY if the Exchange Notes are to be issued in the name of someone other than the undersigned.
|
||
Name:
|
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Address:
|
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||
|
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Book-Entry Transfer Facility Account:
|
||
|
||
Employer Identification or Social Security Number:
|
||
|
||
(please print or type)
|
SPECIAL DELIVERY INSTRUCTIONS
|
||
To be completed ONLY if the Exchange Notes are to be sent to someone other than the undersigned, or the undersigned at an address other than that shown under “Description of 11.25% Senior Secured Second Lien Notes due 2018 Tendered Hereby”
|
||
Name:
|
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|
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Address:
|
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||
|
||
Employer Identification or Social Security Number:
|
||
|
||
(please print or type)
|
REGISTERED HOLDER(S) OF OUTSTANDING NOTES SIGN HERE
(In addition, complete Substitute Form W-9 below)
|
||
X
|
|
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X
|
|
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Must be signed by registered holder(s) exactly as name(s) appear(s) on the Outstanding Notes or on a security position listing as the owner of the Outstanding Notes or by person(s) authorized to become registered holders(s) by properly completed bond powers transmitted herewith. If signature is by attorney-in-fact, trustee, executor, administrator, guardian, officer of a corporation or other person acting in a fiduciary capacity, please provide the following information (please print or type):
|
NOTE:
|
FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 28% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER AND THE SOLICITATION. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
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CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate IRS Center or Social Security Administration Office or (b) I intend to mail or deliver an application in the near future. I understand that if I have not provided a taxpayer identification number, 28% of all reportable payments made to me will be withheld until I provide a number.
|
||
|
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Signature
|
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Date
|
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|
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Name (Please Print)
|
|
|
IMPORTANT:
|
THIS LETTER OF TRANSMITTAL OR A FACSIMILE THEREOF (TOGETHER WITH OUTSTANDING NOTES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE.
|
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For this type of account:
|
Give the
SOCIAL SECURITY
number of—
|
|
For this type of account:
|
Give the EMPLOYER
IDENTIFICATION
number of—
|
1. An individual's account
|
The individual
|
|
6. Sole proprietorship or single-owner LLC account
|
The owner (3)
|
|
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|
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2. Two or more individuals (joint account)
|
The actual owner of the account or, if combined funds, the first individual on the account (1)
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7. A valid trust, estate or pension trust account
|
Legal entity (4)
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8. Corporate or LLC electing corporate status account
|
The corporation
|
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3. Custodian account of a minor (Uniform Gift to Minors Act)
|
The minor (2)
|
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4. a. The usual revocable savings trust account (grantor is also a trustee)
|
The grantor-trustee (1)
|
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9. Association, club, religious, charitable, educational or other tax-exempt organization account
|
The organization
|
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b. So-called trust account that is not a legal or valid trust under State law
|
The actual owner (1)
|
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10. Partnership or multi-member LLC account
|
The partnership
|
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11. A broker or registered nominee
|
The broker or nominee
|
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5. Sole proprietorship or single-owner LLC account
|
The owner (3)
|
|
12. Account with the Department of Agriculture in the name of a public entity (such as a State or local government, school district or prison) that receives agricultural program payments
|
The public entity
|
(1)
|
List first and circle the name of the person whose number you furnish. If only one person on a joint account has a Social Security number, that person's number must be furnished.
|
(2)
|
Circle the minor's name and furnish the minor's Social Security number.
|
(3)
|
You must show your individual name, but you may also enter the business or “doing business as” name. You may use either your Social Security Number or employer identification number (if you have one).
|
(4)
|
List first and circle the name of the legal trust, estate or pension trust. Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title.
|
Note:
|
If no name is circled when there is more than one name, the number will be considered to be that of the first name listed.
|
•
|
An organization exempt from tax under section 501(a), an individual retirement account (IRA), or a custodial account under section 403(b)(7), if the account satisfies the requirements of section 401(f)(2).
|
•
|
The United States or any agency or instrumentality thereof.
|
•
|
A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof.
|
•
|
A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof.
|
•
|
An international organization or any agency, or instrumentality thereof.
|
•
|
A corporation.
|
•
|
A financial institution.
|
•
|
A dealer in securities or commodities required to register in the U.S., the District of Columbia or a possession of the U.S.
|
•
|
A real estate investment trust.
|
•
|
A common trust fund operated by a bank under section 584(a).
|
•
|
A trust exempt from tax under section 664 or described in section 4947.
|
•
|
An entity registered at all times during the tax year under the Investment Company Act of 1940.
|
•
|
A middleman known in the investment community as a nominee or custodian.
|
•
|
A foreign central bank of issue.
|
•
|
A futures commission merchant registered with the Commodity Futures Trading Commission.
|
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON , 2012 UNLESS THE OFFER IS EXTENDED (THE “EXPIRATION DATE”).
|
By Registered or Certified Mail
or By Hand or Overnight Delivery:
|
By Facsimile
(for Eligible Institution Only):
|
Confirm by Telephone:
|
|
|
|
The Bank of New York Mellon Trust Company, N.A., as Exchange Agent
c/o The Bank of New York Mellon Corporation Corporate Trust Operations - Reorganization Unit 111 Sanders Creek Parkway
East Syracuse, NY 13057
Attention: Adam Decapio
|
(732) 667-9408
Attention: Adam Decapio
|
(315) 414-3360
|
$
|
|
*
|
Must be in denominations of principal amount of $2,000 and multiples of $1,000 in excess thereof.
|
|
|
|
|
|
$
|
|
X
|
|
|
|
|
|
|
|
X
|
|
|
|
|
Signature(s) of Holder(s)
or Authorized Signatory
|
|
Date
|
Name(s) of Registered Holder(s):
|
|
||
Address:
|
|
||
Area Code and Telephone Number:
|
|
|
Name(s):
|
|
||
Capacity:
|
|
||
Address(es):
|
|
||
|
|
||
|
|
||
Account Number:
|
|
Name of Firm:
|
|
||||
Address:
|
|
||||
Area Code and Telephone Number:
|
|
||||
Authorized Signature:
|
|
||||
Name:
|
|
Title:
|
|
Date:
|
|
NOTE:
|
Do not send certificates of Outstanding Notes with this form. Certificates of Outstanding Notes should be sent to the Exchange Agent together with a properly completed and duly executed Letter of Transmittal.
|
1.
|
The Prospectus;
|
2.
|
A Letter of Transmittal for use in connection with the exchange of Outstanding Notes and for the information of your clients, together with a Substitute Form W-9 and Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9, providing information relating to U.S. federal income tax backup withholding (facsimile copies of the Letter of Transmittal may be used to exchange Outstanding Notes);
|
3.
|
A form of letter that may be sent to your clients for whose accounts you hold Outstanding Notes registered in your name or the name of your nominee, with space provided for obtaining the client's instructions with regard to the Exchange Offer;
|
4.
|
A Notice of Guaranteed Delivery; and
|
5.
|
A return envelope addressed to The Bank of New York Mellon Trust Company, N.A., as the Exchange Agent.
|
|
[ ] To TENDER the following Outstanding Notes held by you for the account or benefit of the undersigned (insert principal amount of Outstanding Notes to be tendered, if any):
|
|
$ of the Outstanding Notes.
|
|
[ ] NOT to TENDER any Outstanding Notes held by your for the account or benefit of the undersigned.
|
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|
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Signature(s)
|
|
|
|
Capacity (full title), if signing in a fiduciary or representative capacity
|
|
|
|
Print Name(s)
|
|
|
|
|
|
Name(s) and address, including zip code
|
|
Date:
|
|
|
|
Area Code and Telephone Number
|
|
|
|
Taxpayer Identification or Social Security Number
|
|
|
|
My Account Number with You
|