U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _______________ TO ______
COMMISSION FILE NUMBER 0-21423
CHICAGO PIZZA & BREWERY, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 33-0485615
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
26131 MARGUERITE PARKWAY
SUITE A
MISSION VIEJO, CALIFORNIA 92692
(Address and zip code of Registrant's principal executive offices)
(949) 367-8616
(Registrants telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES X NO.
---
As of October 25, 1999, there were 7,658,321 shares of Common Stock of the
Registrant outstanding and 8,284,584 Redeemable Warrants of the Registrant
outstanding.
<PAGE>
CHICAGO PIZZA & BREWERY, INC. AND SUBSIDIARIES
PAGE
----
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements 1
Consolidated Balance Sheets -
September 30, 1999 (Unaudited) and December 31, 1998 1
Unaudited Consolidated Statements of Operations -
Three Months Ended and Nine Months Ended
September 30, 1999 and September 30, 1998 2
Unaudited Consolidated Statements of Cash Flows -
Nine Months Ended September 30, 1999 and
September 30, 1998 3
Notes to Consolidated Financial Statements 4
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 5
Item 3. Quantitative and Qualitative Disclosures about Market Risk 11
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 11
Item 2. Changes in Securities 11
Item 3. Defaults Upon Senior Securities 12
Item 4. Submission of Matters to a Vote of
Security Holders 12
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12
SIGNATURES
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
CHICAGO PIZZA & BREWERY, INC.
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 30, DECEMBER 31,
1999 1998
(UNAUDITED)
--------------- --------------
ASSETS:
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 1,882,686 $ 1,490,705
Accounts receivable 114,302 175,712
Inventory 389,907 345,874
Prepaid and other current assets 192,419 295,176
--------------- --------------
Total current assets 2,579,314 2,307,467
Property and equipment, net 11,318,983 9,567,604
Other assets 347,521 352,916
Intangible assets, net 5,243,467 5,366,722
--------------- --------------
Total assets $ 19,489,285 $ 17,594,709
=============== ==============
LIABILITIES AND SHAREHOLDERS' EQUITY:
Current liabilities:
Accounts payable $ 1,208,157 $ 1,130,691
Accrued expenses 1,541,002 1,286,539
Current portion of notes payable to related parties 336,187 339,727
Current portion of long-term debt 356,483 210,367
Current portion of obligations under capital leases 139,854 135,809
--------------- --------------
Total current liabilities 3,581,683 3,103,133
Notes payable to related parties 1,465,942 1,718,954
Long-term debt 690,681 355,313
Obligations under capital leases 66,618 167,219
Other liabilities 112,373 122,099
--------------- --------------
Total liabilities 5,917,297 5,466,718
--------------- --------------
Minority interest in partnership 270,344 235,040
--------------- --------------
Shareholders' equity:
Preferred stock, 5,000,000 shares authorized, none issued
or outstanding
Common stock, no par value, 60,000,000 shares authorized; 7,658,321
and 6,408,321 shares issued and outstanding as of
September 30, 1999 and December 31, 1998, respectively. 16,076,132 15,039,646
Capital surplus 1,007,171 1,196,029
Accumulated deficit (3,781,659) (4,342,724)
--------------- --------------
Total shareholders' equity 13,301,644 11,892,951
--------------- --------------
Total liabilities and shareholders' equity $ 19,489,285 $ 17,594,709
=============== ==============
<FN>
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CHICAGO PIZZA & BREWERY, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE THREE MONTHS ENDED FOR THE NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------- --------------------------
1999 1998 1999 1998
------------ ----------- ------------ ------------
<S> <C> <C> <C> <C>
Revenues $10,039,105 $8,157,975 $28,078,790 $22,871,430
Cost of sales 2,861,960 2,231,935 7,876,593 6,402,936
------------ ----------- ------------ ------------
Gross profit 7,177,145 5,926,040 20,202,197 16,468,494
Costs and expenses:
Labor and benefits 3,543,146 2,882,977 10,050,707 8,175,663
Occupancy 775,823 666,088 2,236,200 1,898,733
Operating expenses 1,106,134 936,988 3,032,259 2,676,561
Preopening costs 43,439 - 365,352 -
Restaurant closure expenses - - 169,071 -
General and administrative 872,249 661,084 2,288,017 1,867,828
Depreciation and amortization 392,139 423,223 1,135,894 1,346,363
------------ ----------- ------------ ------------
Total cost and expenses 6,732,930 5,570,360 19,277,500 15,965,148
------------ ----------- ------------ ------------
Income from operations 444,215 355,680 924,697 503,346
Other income (expense):
Interest expense, net (64,615) (50,064) (187,805) (157,890)
Other income (expense), net 285 1,464 9,991 (4,317)
------------ ----------- ------------ ------------
Total other expense (64,330) (48,600) (177,814) (162,207)
------------ ----------- ------------ ------------
Income before minority interest, income
taxes and change in accounting 379,885 307,080 746,883 341,139
Minority interest in partnership (33,773) (21,929) (53,832) (55,527)
------------ ----------- ------------ ------------
Income (loss) before income taxes and change
change in accounting 346,112 285,151 693,051 285,612
Income tax expense (15,236) - (25,811) (1,600)
------------ ----------- ------------ ------------
Income (loss) before change in accounting 330,876 285,151 667,240 284,012
Cumulative effect of change in accounting - - (106,175) -
------------ ----------- ------------ ------------
Net income $ 330,876 $ 285,151 $ 561,065 $ 284,012
============ =========== ============ ============
Net income per share:
Basic and dilutive:
Income before cumulative effect of change in
accounting $0.04 $0.04 $0.09 $0.04
Cumulative effect of change in accounting - - ($0.01) -
------------ ----------- ------------ ------------
Net income $0.04 $0.04 $0.08 $0.04
============ =========== ============ ============
Weighted average number of shares outstanding:
Basic 7,658,321 6,408,321 7,328,651 6,408,321
============ =========== ============ ============
Dilutive 7,669,453 6,450,384 7,338,419 6,450,384
============ =========== ============ ============
<FN>
The accompanying notes are an integral part of these consolidated financial statements.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CHICAGO PIZZA & BREWERY, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE NINE MONTHS
ENDED SEPTEMBER 30,
-------------------------
1999 1998
------------ -----------
<S> <C> <C>
Cash flows provided by (used in) operating activities:
Net income $ 561,065 $ 284,012
Adjustments to reconcile net income to net cash
Provided by operating activities:
Depreciation and amortization 1,135,894 1,346,363
Change in accounting principle 106,175 -
Minority interest in partnership 53,832 55,527
Loss on disposal of assets 136,925 -
Changes in assets and liabilities:
Accounts receivable 61,410 (10,041)
Inventory (44,033) (14,468)
Prepaid and other current assets (156,018) 90,347
Other assets (1,553) (435,970)
Accounts payable 77,466 (164,850)
Accrued expenses 254,463 92,927
Other liabilities (9,726) (9,732)
------------ -----------
Net cash provided by operating activities 2,175,900 1,234,115
------------ -----------
Cash flows used in investing activities:
Purchases of equipment (2,913,776) (938,352)
Proceeds from sale of restaurant equipment 48,867 7,000
----------- -----------
Net cash used in investing activities (2,864,909) (931,352)
------------ -----------
Cash flows provided by (used in) financing activities:
Proceeds from sale of common stock 1,000,000 -
Repurchase of redeemable warrants (28,858) -
Equipment loan proceeds 699,604 -
Payments on related party debt (256,552) (249,612)
Payments on debt (218,120) (227,541)
Capital lease payments (96,556) (90,599)
Distribution to minority interest partners (18,528) (25,476)
------------ -----------
Net cash provided by (used in) financing activities 1,080,990 (593,228)
------------ -----------
Net increase (decrease) in cash and cash equivalents 391,981 (290,465)
Cash and cash equivalents, beginning of period 1,490,705 1,705,349
------------ -----------
Cash and cash equivalents, end of period $ 1,882,686 $1,414,884
============ ===========
<FN>
The accompanying notes are an integral part of these consolidated financial
statements.
</TABLE>
<PAGE>
CHICAGO PIZZA & BREWERY, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
----------------------------------------------------
BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Chicago
Pizza & Brewery, Inc. and its subsidiaries (the "Company") for the three months
and nine months ended September 30, 1999 and 1998 have been prepared in
accordance with generally accepted accounting principles, and with the
instructions to Form 10-Q and Rule 10-01 of Regulation S-X. These financial
statements have not been audited by independent accountants, but include all
adjustments (consisting of normal recurring adjustments) which are, in
Management's opinion, necessary for a fair presentation of the financial
condition, results of operations and cash flows for such periods. However, these
results are not necessarily indicative of results for any other interim period
or for the full year.
Certain information and footnote disclosures normally included in financial
statements in accordance with generally accepted accounting principles have been
omitted pursuant to requirements of the Securities and Exchange Commission
(SEC). A description of the Company's accounting policies and other financial
information is included in the audited consolidated financial statements as
filed with the SEC on Form 10-KSB for the year ended December 31, 1998.
Management believes that the disclosures included in the accompanying interim
financial statements and footnotes are adequate to make the information not
misleading, but should be read in conjunction with the consolidated financial
statements and notes thereto included in the Form 10-KSB. The accompanying
consolidated balance sheet as of December 31, 1998 has been derived from the
audited financial statements.
ORGANIZATION
Chicago Pizza & Brewery, Inc. (the "Company" or "BJ's") owns and operates,
as of September 30, 1999, 27 restaurants located in Southern California, Oregon,
Washington and Colorado and an interest in one restaurant in Lahaina, Maui.
Each of these restaurants is operated as either a BJ's Pizza, Grill & Brewery,
BJ's Pizza & Grill, BJ's Pizza & Grill - OTC or a Pietro's Pizza restaurant.
The menu at the BJ's restaurants feature BJ's award-winning, signature deep-dish
pizza, BJ's own hand-crafted beers as well as a great selection of appetizers,
entrees, pastas, sandwiches, specialty salads and desserts. The six BJ's Pizza,
Grill & Brewery restaurants feature in-house brewing facilities where BJ's
handcrafted beers are produced. The one BJ's Pizza & Grill - OTC restaurant has
a limited menu and service level. The eight Pietro's Pizza restaurants serve
primarily Pietro's thin-crust pizza in a very casual, counter-service
environment.
During the 3rd quarter of 1999, the Company signed a sublease to operate a
BJ's restaurant in La Mesa, California and acquired selected assets, including
the liquor license, of the previous restaurant at this location. The rebuilt
restaurant was opened as a BJ's Pizza & Grill on November 8,1999. The Company
has also signed a lease for a BJ's Pizza & Grill in Valencia, California; the
anticipated opening of this new facility is early 2000. The Company is in escrow
to acquire a restaurant location in West Covina, California. The closing of
escrow and acquisition of this location is contingent on the satisfaction of
certain contingencies. Pending the resolution of these contingencies, the
Company anticipates opening a BJ's Pizza, Grill & Brewery at this location late
in the second quarter of 2000.
PER SHARE INFORMATION
SFAS 128, "Earnings Per Share", was adopted in the fourth quarter of 1997.
The new standard requires dual presentation of basic net income per common share
and net income per common share assuming dilution on the face of the income
statement. Basic net income per share is computed by dividing the net income
attributable to common stockholders by the weighted average number of common
shares outstanding during the period.
RECENTLY ISSUED ACCOUNTING STANDARDS
As had been the practice of many restaurant entities, the Company
previously deferred its restaurant preopening costs and amortized them over the
twelve-month period following the opening of each new restaurant. In April 1998,
the Accounting Standards Executive Committee of the American Institute of
Certified Public Accountants issued Statement of Position 98-5 (SOP 98-5),
Accounting for the Costs of Start-Up Activities. SOP 98-5 requires all costs of
start-up activities that are not otherwise capitalizable as long-lived assets to
be expensed as incurred. The Company adopted SOP 98-5 during the first quarter
of 1999. This new accounting standard will accelerate the Company's recognition
of costs associated with the opening of new restaurants but will benefit the
post-opening results of new restaurants. The Company's total deferred preopening
costs were $106,175 at January 1, 1999. As provided by SOP 98-5, the Company
wrote off the balance of deferred preopening costs during the first quarter of
1999.
Other recently issued standards of the FASB are not expected to affect the
Company, as conditions to which those standards apply are absent.
DIVIDEND POLICY
The Company has not paid any dividends since its inception and has
currently not allocated any funds for the payment of dividends. Rather, it is
the current policy of the Company to retain earnings, if any, for expansion of
its operations, remodeling of existing restaurants and other general corporate
purposes and to not pay any cash dividends in the foreseeable future. Should the
Company decide to pay dividends in the future, such payments would be at the
discretion of the Board of Directors.
LONG-TERM EQUIPMENT LOAN
In January 1999, the Company completed an agreement with a lender to
provide equipment financing up to $1,000,000 for equipment and furnishings
required in the Arcadia, Woodland Hills and other restaurant developments. The
note has a term of eighty-four months, and the interest rate is fixed at the
time of funding; to date funds provided for equipment financing under this
facility have been at effective interest rates ranging from 11.63% to 13.68%.
Amounts borrowed are collateralized by the financed equipment and additional
equipment and property owned by the Company up to the amount of the loan
balance. At September 30, 1999, the outstanding principal balance under the
borrowing agreement was $654,312.
PRIVATE PLACEMENT
In March 1999, the Company sold, through a private placement, 1,250,000
shares of its common stock to ASSI, Inc. (the "ASSI Transaction") in exchange
for a cash payment of $1,000,000, the termination of two consulting agreements,
cancellation of 3,200,000 of the Company's redeemable warrants held by ASSI,
Inc. and the agreement by ASSI, Inc. and its sole stockholder to finance future
Company development projects subject to pre-commitment approval. The Company
also has the right of first refusal to repurchase the shares of its common
stock; in the event the shareholder decides to sell such shares.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion and analysis should be read in conjunction with
the Company's Unaudited Consolidated Financial Statements and notes thereto
included elsewhere in this Form 10-Q. Except for the historical information
contained herein, the discussion in this Form 10-Q contains certain forward
looking statements that involve risks and uncertainties, such as statements of
the Company's plans, objectives, expectations and intentions. The cautionary
statements made in this Form 10-Q should be read as being applicable to all
related forward-looking statements wherever they appear in this Form 10-Q. The
Company's actual results could differ materially from those discussed here.
Factors that could cause or contribute to such differences include, without
limitation, those factors discussed herein and in the Company's annual report as
reported on Form 10-KSB dated December 31, 1998 including, without limitation:
(i) the Company's ability to manage growth and conversions, (ii) construction
delays, (iii) marketing and other limitations as a result of the Company's
historic concentration in Southern California and current concentration in the
Northwest, (iv) restaurant and brewery industry competition, (v) impact of
certain brewery business considerations, including without limitation,
dependence upon suppliers and related hazards, (vi) increase in food costs and
wages, including without limitation the recent increase in minimum wage, (vii)
consumer trends, (viii) potential uninsured losses and liabilities, (ix)
trademark and servicemark risks, (x) year 2000 risk issues, and (xi) other
general economic and regulatory conditions and requirements.
RESULTS OF OPERATIONS
Three-Month Period Ended September 30, 1999 Compared to Three-Month Period
Ended September 30, 1998.
Revenues. Total revenues for the three-month period ended September 30,
1999 increased to $10,039,000 from $8,158,000 for the comparable period in 1998,
an increase of $1,881,000 or 23.1%. The increase is primarily the result of:
The opening of the Arcadia, California and Woodland Hills, California
restaurants on January 21, 1999 and April 10, 1999, respectively. These new
restaurants generated revenues of $1,949,000 during the third quarter of 1999.
An increase in same store sales at the BJ's restaurants that were open both
periods of $397,000 or 6.1%. Management believes this increase was due to an
increase in customer counts and more effective suggestive selling techniques at
the restaurants.
The overall increase in revenues for the third quarter of 1999 when
compared to the same quarter of the prior year was achieved despite the closing
of the BJ's restaurant in The Dalles, Oregon in May 1999 and a Pietro's
restaurant in Eugene, Oregon in June 1999. Sales at the nine remaining Pietro's
restaurants in Oregon and Washington were essentially flat, when comparing third
quarter 1999 with third quarter 1998.
Cost of Sales. Cost of food, beverages and paper (cost of sales) for the
restaurants increased to $2,862,000 for the three month period ended September
30, 1999 from $2,232,000 for the comparable period in 1998, an increase of
$630,000 or 28.2%. As a percentage of revenues, cost of sales increased to
28.5% during the 1999 period from 27.4% in the 1998 period. The increase in cost
of sales as a percentage of revenues was primarily due to the opening of the
Arcadia, California and Woodland Hills, California restaurants. Cost of sales
for these new restaurants was 30.8 % as a percentage of their revenues. This
higher than normal cost of sales was anticipated based on previous experience
when opening new restaurants.
Labor. Labor costs for the restaurants increased to $3,543,000 in the
three-month period ended September 30, 1999 from $2,883,000 for the comparable
period in 1998, an increase of $660,000 or 22.9%. As a percentage of revenues,
labor costs were unchanged at 35.3% for both the 1999 and 1998 three-month
periods. This control of labor costs was achieved despite the planned initial
overstaffing of the Arcadia, California restaurant opened in January 1999 and
the Woodland, Hills, California restaurant opened in April 1999. As a percentage
of revenues, the combined labor costs for these new stores were 39.9% for the
third quarter.
Occupancy. Occupancy costs increased to $776,000 during the three-month
period ended September 30, 1999 from $666,000 during the comparable period in
1998, an increase of $110,000 or 16.5%. Occupancy costs for the new Arcadia,
California and Woodland Hills, California restaurants totaled $126,000. This
amount was partially offset by the closures of the BJ's restaurant in The
Dalles, Oregon and one of the Pietro's restaurants in Eugene, Oregon during the
second quarter of 1999. The balance of the increase was due to annual lease
escalations and higher revenues at restaurants with lease provisions requiring
rental payments based on a percentage of sales. As a percentage of revenues,
occupancy costs for all stores decreased to 7.7% in the 1999 period from 8.2% in
the 1998 period.
Operating Expenses. Operating expenses increased to $1,106,000 during the
three-month period ended September 30, 1999 from $937,000 during the comparable
period in 1998, an increase of $169,000 or 18.0%. However, as a percentage of
revenues, operating expenses decreased slightly to 11.0% in the 1999 period from
11.5% in the 1998 period. The primary reasons for the decrease in operating
expenses as a percentage of revenues were (i) the increase in same store sales,
(ii) an increased focus on operating the restaurants more efficiently and, (iii)
the implementation of improved expense monitoring systems at the BJ's
restaurants in Southern California and Oregon. Operating expenses include
restaurant-level operating costs, the major components of which include
marketing, repairs and maintenance, supplies and utilities.
Preopening Costs. During the first quarter of 1999, the company adopted
Statement of Position 98-5 (SOP 98-5), Accounting for the Costs of Start-Up
Activities, which requires all costs of start-up activities that are not
otherwise capitalizable as long-lived assets to be expensed as incurred. The
Company previously deferred its restaurant preopening costs and amortized them
over the twelve-month period following the opening of each new restaurant. This
new accounting standard accelerates the Company's recognition of costs
associated with the opening of new restaurants. the Company wrote off $106,000
as a cumulative effect of change in accounting principle in the first quarter of
1999.
During the three-month period ended September 30, 1999, the Company
incurred costs of $43,000, primarily due to preparations for the opening of its
new restaurant in La Mesa, California that, under previous accounting standards,
would have been capitalized and amortized over a 12-month period. These costs
will fluctuate from quarter to quarter, possibly significantly, depending upon,
but not limited to, the number of restaurants under development, the size and
concept of the restaurants being developed and the complexity of the staff
hiring and training process.
General and Administrative Expenses. General and administrative expenses
increased to $872,000 during the three-month period ended September 30, 1999
from $661,000 during the comparable period in 1998, an increase of $211,000 or
31.9%. As a percentage of revenues, general and administrative expenses
increased to 8.7% in 1999 from 8.1% during the comparable period of 1998. The
increase in general and administrative expenses was primarily due to increases
in overhead in anticipation of future expansion and costs incurred in locating
and evaluating sites for future restaurants.
Depreciation and Amortization. Depreciation and amortization decreased to
$392,000 during the three-month period ended September 30, 1999 from $423,000
during the comparable period in 1998, a decrease of $31,000 or 7.3%. The
decrease was primarily due to the change in accounting principle from the
deferral and amortization of preopening costs to the expensing of those costs as
incurred. Preopening costs amortized during the three-month period ending
September 30, 1998 totaled $92,000. This amount was partially offset by
additional depreciation relating to the opening of the Arcadia, California
restaurant in January 1999 and the Woodland Hills, California restaurant in
April 1999.
Interest Expense. Interest expense, net of interest income, increased to
$65,000 during the three-month period ended September 30, 1999 from $50,000
during the comparable period in 1998, an increase of $15,000 or 30.0%. This
increase was primarily due to the additional debt incurred by the Company to
finance equipment for the new restaurants in Arcadia, California and Woodland
Hills, California. Interest expense related to this financing was $20,000 during
the third quarter; this amount was partially offset by the normal amortization
of older debt.
Income Tax Expense. The Company historically experienced net losses
through 1997. For 1998 the Company had net income of $85,000. At the end of
1998, the Company had federal and California net operating loss carryovers of
approximately $4,770,000 and $1,636,000, respectively. While the net operating
loss carryovers should be adequate to offset any regular taxable income for
1999, the provision for estimated alternative minimum tax expense made during
the second quarter was evaluated and increased to $15,600 at the end of the
third quarter 1999.
Nine-Month Period Ended September 30, 1999 Compared to Nine-Month Period
Ended September 30, 1998.
Revenues. Total revenues for the nine-month period ended September 30,
1999 increased to $28,079,000 from $22,871,000 for the comparable period in
1998, an increase of $5,208,000 or 22.8%. The increase is primarily the result
of:
The opening of the Arcadia, California and Woodland Hills, California
restaurants on January 21, 1999 and April 10, 1999, respectively. These new
restaurants generated revenues of $4,661,000 during the first nine months of
1999.
An increase in same store sales at the BJ's restaurants that were open both
periods of $1,240,000 or 7.0%. Management believes this increase was due to (i)
an increase in customer counts, (ii) an increase in check averages produced by a
price increase implemented in late May 1998 and (iii) the implementation of more
effective suggestive selling techniques at the restaurants.
The overall increase in revenues was achieved despite the closing of the
BJ's restaurant in The Dalles, Oregon in May 1999 and two Pietro's restaurants
in Oregon, one in Eugene in June 1999 and a delivery only location in Woodstock
in April 1998. Sales at the nine remaining Pietro's restaurants in Oregon and
Washington increased slightly during the nine-month period ended September 30,
1999, when compared with the same period of the prior year.
Cost of Sales. Cost of food, beverages and paper (cost of sales) for the
restaurants increased to $7,877,000 for the nine month period ended September
30, 1999 from $6,403,000 for the comparable period in 1998, an increase of
$1,474,000 or 23.0%. Of the increase, $1,421,000 was attributable to the new
stores at Arcadia, California and Woodland Hills, California. As a percentage of
revenues, overall cost of sales at 28.1% during the 1999 period was only
slightly higher than the 28.0% of the 1998 period.
Labor. Labor costs for the restaurants increased to $10,051,000 in the
nine-month period ended September 30, 1999 from $8,176,000 for the comparable
period in 1998, an increase of $1,875,000 or 22.9%. Contributing to the increase
was the planned initial overstaffing of the Arcadia, California and Woodland
Hills, California restaurants which opened in January 1999 and April 1999,
respectively. Labor costs at these two restaurants totaled $1,885,000 from their
respective dates of opening to September 30, 1999. Despite the initial staffing
levels at the new stores, overall labor costs, as a percentage of revenues,
remained stable, increasing slightly to 35.8% in the 1999 period from 35.7% in
the 1998 period.
Occupancy. Occupancy costs increased to $2,236,000 during the nine-month
period ended September 30, 1999 from $1,899,000 during the comparable period in
1998, an increase of $337,000 or 17.7%. The new stores in Arcadia, California
and Woodland Hills, California accounted for $274,000 of the increase in
occupancy costs. As a percentage of revenues, occupancy costs decreased to 8.0%
in the 1999 period from 8.3% in the 1998 period. The primary reasons for the
decrease in occupancy costs relative to revenues was annual lease escalations
offset by increases in comparable store sales, and higher revenues at
restaurants with lease provisions requiring rental payments based on a
percentage of sales.
Operating Expenses. Operating expenses increased to $3,032,000 during the
nine-month period ended September 30, 1999 from $2,677,000 during the comparable
period in 1998, an increase of $355,000 or 13.3%. However, as a percentage of
revenues, operating expenses decreased to 10.8% in the 1999 period from 11.7% in
the 1998 period. The primary reasons for the decrease in operating expenses as
a percentage of revenues were (i) the increase in same store sales, (ii) an
increased focus on operating the restaurants more efficiently and, (iii) the
implementation of improved expense monitoring systems at the BJ's restaurants in
Southern California and Oregon.
Preopening Costs. During the first quarter of 1999, the company adopted
Statement of Position 98-5 (SOP 98-5), Accounting for the Costs of Start-Up
Activities, which requires all costs of start-up activities that are not
otherwise capitalizable as long-lived assets to be expensed as incurred. The
Company previously deferred its restaurant preopening costs and amortized them
over the twelve-month period following the opening of each new restaurant. This
new accounting standard accelerates the Company's recognition of costs
associated with the opening of new restaurants. The Company wrote off $106,000
as a cumulative effect of change in accounting principle in the first quarter of
1999.
During the nine-month period ended September 30, 1999, the Company incurred
costs of $365,000 related to the openings of its new restaurants in Arcadia,
California, Woodland Hills, California and La Mesa, California that, under
previous accounting standards, would have been capitalized and amortized over a
12-month period. These costs will fluctuate from quarter to quarter, possibly
significantly, depending upon, but not limited to, the number of restaurants
under development, the size and concept of the restaurants being developed and
the complexity of the staff hiring and training process.
Restaurant Closure Expenses. On May 31, 1999, the lease on the BJ's Pizza
& Grill - OTC in The Dalles, Oregon terminated. The Company and the landlord
could not reach an agreement on the terms of a lease extension. A portion of the
restaurant equipment was sold to the landlord, and additional equipment was
removed for use at other BJ's locations. The Company incurred a non-cash charge
of $132,900 for a loss on the sale of assets to the landlord at this location
and an additional $28,700 for the settlement of claims made by the landlord.
On June 30, 1999, a Pietro's restaurant located in Eugene, Oregon was
closed. The Company and the landlord could not reach an agreement on the terms
of a new lease. The Company incurred a non-cash charge of $4,000 on the closure
of this restaurant, and incurred other charges related to closing of $3,400.
General and Administrative Expenses. General and administrative expenses
increased to $2,288,000 during the nine-month period ended September 30, 1999
from $1,868,000 during the comparable period in 1998, an increase of $420,000 or
22.5%. As a percentage of revenues, general and administrative expenses were
slightly lower at 8.1% in 1999 compared with 8.2% during the same nine-month
period of 1998. The increase in general and administrative expenses in total
was primarily due to increases in overhead in anticipation of future expansion
and costs associated with the evaluation of potential sites for restaurant
development.
Depreciation and Amortization. Depreciation and amortization decreased to
$1,136,000 during the nine-month period ended September 30, 1999 from $1,346,000
during the comparable period in 1998, a decrease of $210,000 or 15.6%. The
decrease was primarily due to the change in accounting principle from the
deferral and amortization of preopening costs to the expensing of those costs as
incurred. Preopening costs amortized during the first three quarters of 1998
totaled $365,000. This factor was offset by the depreciation expense incurred by
the new restaurants in Arcadia, California and Woodland Hills, California, which
totaled $115,000 through September 30, 1999.
Interest Expense. Interest expense, net of interest income, increased to
$188,000 during the nine-month period ended September 30, 1999 from $158,000
during the comparable period in 1998, an increase of $30,000 or 19.0%. The
increase was primarily due to new equipment financing obtained for the
development of the Arcadia, California and Woodland Hills, California
restaurants, which has incurred $41,000 of interest expense since its inception.
This additional expense was partially offset by the scheduled amortization of
previously existing term loans.
Income Tax Expense. At the end of 1998, the Company had federal and
California net operating loss carryovers of approximately $4,770,000 and
$1,636,000, respectively. While the net operating loss carryovers should be
adequate to offset any regular taxable income for 1999, the provision for
estimated alternative minimum tax expense made during the second quarter was
evaluated and increased to $15,600 at the end of the third quarter 1999.
LIQUIDITY AND CAPITAL RESOURCES
On January 15, 1999, the Company completed a financing agreement with a
lender to provide equipment financing up to $1,000,000 for equipment and
furnishings required in the Arcadia, Woodland Hills and other restaurant
developments. The notes have a term of eighty-four months, and the interest rate
is fixed at the time of funding; to date funds provided for equipment financing
under this facility have been at effective interest rates ranging from 11.63% to
13.68%. At September 30, 1999, $654,000 was outstanding under this financing
agreement, and $300,000 remains available to the Company for future equipment
financing.
On March 1, 1999, the Company completed the sale of Company Common Stock to
ASSI, Inc. The Company issued 1,250,000 common shares to the shareholder in
exchange for a cash payment of $1,000,000, the cancellation of 3,200,000 of the
Company's Redeemable Warrants and other consideration. See Notes to Unaudited
Consolidated Financial Statements.
The Company's operating activities, as detailed in the Unaudited
Consolidated Statement of Cash Flows, provided $2,176,000 net cash during the
nine-month period ending September 30, 1999, a $942,000, or 76.3%, increase over
the $1,234,000 generated in the comparable period of 1998. The Company used
$2,914,000 to acquire equipment and facilities during the nine-month period
ending September 30, 1999, compared to the $938,000 used for this purpose during
the comparable period of 1998, an increase of $1,976,000, or 210.7%. These
expenditures were required to develop the two new California restaurants, as
well as the La Mesa, California restaurant recently opened. An additional
$571,000 was used during the first three quarters of 1999 for the repayment of
debt and capital lease payments, compared to $568,000 used for that purpose in
the comparable periods of 1998.
Cash and cash equivalents during the first nine months of 1999 increased to
$1,883,000, an increase of $392,000 from the amount at December 31, 1998, the
Company's 1998 fiscal year end. This increase, after the acquisition and
financing of equipment and facilities, was primarily due to the sale of the
Company's Common Stock to an existing shareholder, as mentioned above and
discussed later in this filing. The Company currently intends to utilize cash
and cash equivalents primarily for the development of additional restaurants, as
well as for working capital purposes. Management believes that cash and cash
equivalents available at September 30, 1999, the balance available under the
existing equipment financing facility and future operating cash flow will be
sufficient for the Company to fund its operations and continue to meet its
business plan over the next year. However, no assurance can be given that
management can successfully implement such objectives. Further, there can be no
assurance that future events, including problems, delays, additional expenses
and difficulties encountered in expansion and conversion of restaurants, will
not require additional financing, or that such financing will be available if
necessary.
IMPACT OF INFLATION
Impact of inflation on food, labor and occupancy costs can significantly
affect the Company's operations. Many of the Company's employees are paid
hourly rates related to the federal minimum wage, which has been increased
numerous times and remains subject to future increases.
SEASONALITY AND ADVERSE WEATHER
The Company's results of operations have historically been impacted by
seasonality, which directly impacts tourism at the Company's coastal locations.
The summer months (June through August) have traditionally been higher volume
periods than other periods of the year.
YEAR 2000 COMPLIANCE
The Company has completed a review of its computerized information systems
to identify the systems and applications that could be affected by Year 2000
issues. The Company primarily utilizes software and hardware offered by major
developers, and periodically purchases upgrades directly from those developers
or authorized resellers. The Company's policy since the beginning of 1998 is to
seek and purchase upgrades that include from the developer a Year 2000
compliance warranty. To date, the Company has spent approximately $30,000 in
upgrading its essential software and hardware.
As part of their support program, the vendor/developer of the Company's
point of sale system recently provided an upgrade to assist the Company in
making its POS system Year 2000 compliant. This upgrade has recently been
installed in our restaurants, and management is assessing the system's ability
to handle Year 2000 transactions. Management feels that its main data processing
systems are either now or very close to being Year 2000 compliant, and that any
additional expenditures will not be significant.
The Company's non-IT systems consist primarily of our telephone switching
equipment and restaurant operating equipment. We have upgraded our telephone
switching equipment where necessary. Our initial assessment of our restaurant
operating equipment has indicated that modification or replacement will not be
necessary as a result of the Year 2000 issue. Therefore we are not currently
remediating this operating equipment. However, the existence of non-compliant
embedded technology in this type of equipment is, by nature, more difficult to
identify and repair than in computer hardware and software.
The Company also plans to contact its major product vendors and request
statements as to their preparedness for the potential impact of Year 2000
issues. Their responses will be evaluated, and, based on the information
provided, decisions will be made as to their ability to continue to meet the
Company's need for product into Year 2000. Alternative sources for product will
be identified in cases where the Company feels there are major questions as to
the vendor's ability to conduct its normal business due to potential Year 2000
implications.
The Company has determined that the readiness of its customers is not
within its control even though the ability of its customers to purchase its
products may be affected by third parties (financial institutions). The Company
is not investigating this issue, and the impact is highly uncertain.
Despite our Year 2000 remediation, testing efforts and contingency
planning, there may be disruptions and unexpected business problems caused by IT
systems, non-IT systems or third party vendors during the early months of the
year 2000. The Company is making diligent efforts to assess the Year 2000
readiness of our significant business partners and will develop contingency
plans for critical areas where we believe our exposure to Year 2000 risk is the
greatest. However, despite our best efforts, we may encounter unanticipated
third party failures or a failure to have successfully concluded our systems
remediation efforts. Any of these unforeseen events could have a material
adverse impact on the Company's results of operations, financial condition or
cash flows. Additionally, any prolonged inability of a significant number of
our restaurants to operate could have a material adverse effect. The amount of
any potential losses related to these occurrences cannot be reasonably estimated
at this time.
The worst case scenario for the Company is that a significant number of our
restaurants will be unable to operate for a few days due to public
infrastructure failures and/or food supply problems. Some restaurants may have
longer-term problems lasting a few weeks. The failure of restaurants to operate
would result in reduced revenues and cash flows for the Company during the
period of disruption. Loss of restaurant revenues would be partially mitigated
by reduced costs.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company is exposed to market risk from changes in commodity prices,
since many of the food products purchased by the Company are affected by
commodity pricing, and, therefore, are vulnerable to unpredictable price
fluctuations. Over the recent past, the Company has experienced price volatility
in such products as cheese and produce. The Company buys a significant portion
of its product from a distributor, and has only minimal forward purchasing
agreements with other suppliers. Material changes in commodity prices could
negatively affect the Company's margins in the short-term.
Longer-term changes in commodity pricing would affect most of the
restaurant industry as well the Company. The Company most likely would be able
to mitigate increased commodity prices by increasing menu prices, thereby
passing them through to consumers, and by varying its menu product mix. However,
competitive circumstances could limit menu pricing and/or mix strategies, and,
in those circumstances, commodity price fluctuations would negatively impact the
Company's margins. Management believes, however, that were such circumstances to
occur, they would not materially impact the Company's results of operations.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Restaurants such as those operated by the Company are subject to litigation
in the ordinary course of business, most of which the Company expects to be
covered by its general liability insurance. Punitive damages awards, however,
are not covered by the Company's general liability insurance. To date, the
Company has not paid punitive damages with respect to any claims, but there can
be no assurance that punitive damages will not be awarded with respect to any
future claims or any other actions. The Company is currently not a party to any
pending legal proceedings which it believes will have a material adverse effect
on its consolidated financial position or consolidated results of operations.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
None.
<PAGE>
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On September 28, 1999, the Company held its Annual Meeting of Shareholders.
Shareholders voted upon the election of directors and upon the ratification of
PricewaterhouseCoopers, LLP, as the Company's independent public accountants for
the fiscal year ending December 31, 1998. Paul Motenko, Jeremiah Hennessy,
Ernest Klinger, Alexander Puchner, Barry Grumman, Stanley Schneider, Allyn
Burroughs and Mark James, all of whom were directors prior to the Annual Meeting
and were nominated by management for re-election, were re-elected at the
meeting. The following votes were cast for each nominee:
NAME FOR WITHHELD
-------------------- --------- --------
Paul A. Motenko 6,508,553 147,400
Jeremiah J. Hennessy 6,508,553 147,400
Ernest T. Klinger 6,508,553 147,400
Alexander Puchner 6,508,553 147,400
Barry J. Grumman 6,507,053 148,900
Stanley Schneider 6,508,553 147,400
Allyn R. Burroughs 6,508,553 147,400
Mark James 6,507,053 148,900
The following votes were cast for the amendment of the 1996 Stock Option
Plan increasing the shares available to 1,200,000 and increasing the share limit
per person per year to 500,000 shares: For: 6,342,631; Against: 234,561;
Abstain: 4,700; Broker Non-votes: 74,061.
The following votes were cast for the ratification of
PricewaterhouseCoopers, LLP, as the Company's independent public accountants for
the fiscal year ending December 31, 1999: For: 6,604,853; Against: 45,300;
Abstain: 5,800.
Shareholders who wish to submit proposals to be included in the Company's
proxy materials for the 2000 annual meeting may do so in accordance with
Securities and Exchange Commission Rule 14a-8. For those shareholder proposals
which are not submitted in accordance with Rule 14a-8, the Company's management
proxies may exercise their discretionary voting authority, without any
discussion of the proposal in the Company's proxy materials, for any proposal
which is received by the Company after March 1, 2000.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
3.1 Amended and Restated Articles of Incorporation of the Company, as
amended incorporated by reference to the Company's Registration
Statement on Form SB-2, effective October 8, 1996 (SEC File No.
333-5182-LA), referred to herein as the "Registration Statement".
3.2 Bylaws of the Company, as amended, incorporated by reference to Exhibit
3.2 of Form 10-Q dated March 31, 1999.
4.1 Specimen Common Stock Certificate of the Company (incorporated by
reference to Exhibit 4.1 of the Registration Statement).
4.2 Warrant Agreement (incorporated by reference to Exhibit 4.2 of the
Registration Statement).
4.3 Specimen Common Stock Purchase Warrant (incorporated by reference
to Exhibit 4.3 of the Registration Statement).
4.4 Form of Representative's Warrant (incorporated by reference to
Exhibit 4.4. of the Registration Statement).
10.1 Assignment and Second Amendment of Real Estate Lease, dated
August 15, 1999 between Chicago Pizza & Brewery, Inc., Grossmont
Shopping Center and Pizza Nova - La Mesa for a BJ's Pizza,
Grill and Brewery restaurant.
27.1 Financial Data Schedule
(b) Reports on Form 8-K
The Company filed no reports on Form 8-K during the quarter ended
September 30, 1999.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CHICAGO PIZZA & BREWERY, INC.
(Registrant)
November 12, 1999 By: /s/ PAUL A. MOTENKO
--------------------
Paul A. Motenko
Co-Chief Executive Officer, Vice
President, Secretary and Co-Chairman
of the Board of Directors
By: /s/ JEREMIAH J. HENNESSY
-------------------------
Jeremiah J. Hennessy
Co-Chief Executive Officer
and Co-Chairman of the Board
of Directors
By: /s/ ERNEST T. KLINGER
--------------------------
Ernest T. Klinger
President, Chief Financial Officer
and Co-Chairman of the Board of
Directors
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted fron the the
unaudited Consolidated Balance Sheet and unaudited Consolidated Statement of
Operations found on pages 1 and 2 of the Company's form 10-Q for the quarter and
year-to-date and is qualified in its entirety by reference to such financial
statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999 DEC-31-1998
<PERIOD-START> JUL-01-1999 JAN-01-1999 JAN-01-1998
<PERIOD-END> SEP-30-1999 SEP-30-1999 SEP-30-1998
<CASH> 1,883 1,883 1,415
<SECURITIES> 0 0 0
<RECEIVABLES> 114 114 172
<ALLOWANCES> 0 0 0
<INVENTORY> 390 390 376
<CURRENT-ASSETS> 2,579 2,579 2,396
<PP&E> 15,216 15,216 11,482
<DEPRECIATION> 3,897 3,897 2,705
<TOTAL-ASSETS> 19,489 19,489 17,642
<CURRENT-LIABILITIES> 3,582 3,582 2,721
<BONDS> 3,056 3,056 3,111
0 0 0
0 0 0
<COMMON> 16,076 16,076 15,040
<OTHER-SE> (2,774) (2,774) (2,948)
<TOTAL-LIABILITY-AND-EQUITY> 19,489 19,489 17,642
<SALES> 10,039 28,079 22,871
<TOTAL-REVENUES> 10,039 28,079 22,871
<CGS> 2,862 7,877 6,403
<TOTAL-COSTS> 9,595 27,154 22,368
<OTHER-EXPENSES> 0 0 4
<LOSS-PROVISION> 0 0 0
<INTEREST-EXPENSE> 65 188 158
<INCOME-PRETAX> 346 693 286
<INCOME-TAX> 15 26 2
<INCOME-CONTINUING> 331 667 284
<DISCONTINUED> 0 0 0
<EXTRAORDINARY> 0 0 0
<CHANGES> 0 (106) 0
<NET-INCOME> 331 561 284
<EPS-BASIC> 0.04 0.08 0.04
<EPS-DILUTED> 0.04 0.08 0.04
</TABLE>
BJ'S Pizza and Grill
Assignment and Second Amendment of Lease
August 2, 1999
ASSIGNMENT AND SECOND AMENDMENT OF LEASE
THIS ASSIGNMENT AND SECOND AMENDMENT OF LEASE ("Agreement") is made as of
this 15th day of August 1999 ("Effective Date") by and among GROSSMONT
------ -------------
SHOPPING CENTER CO., a California limited partnership ("Landlord"), PIZZA NOVA -
LA MESA, INC., a California corporation ("Assignor"), and CHICAGO PIZZA &
BREWERY, INC., a California corporation (Assignee").
R E C I T A L S
- - - - - - - -
A. Landlord and Tenant's predecessor-in-interest entered into that
certain Grossmont Center Lease dated March 12, 1992 ("Lease"), as amended by
that certain Assignment of and Amendment to Lease dated January 6, 1993 ("First
Amendment"), for the lease of certain premises more commonly known as a portion
of Building M ("Premises") in the City of La Mesa, County of San Diego, State of
California, in a commercial project commonly referred to as Grossmont Center
("Center"), all as more particularly set forth in the Lease.
B. Pursuant to the First Amendment, the original Tenant under the Lease,
Mango's Restaurants, Inc. ("Mango's"), assigned the Lease to Chart House
Enterprises, Inc. ("Chart House") (the "First Assignment").
C. Chart House thereafter assigned the Lease to F.C. San Diego, Inc. ("F.C.
San Diego"), pursuant to that certain Assignment of Lease dated March 1, 1994
(the "Second Assignment").
D. Subsequent to a default under the Lease by F.C. San Diego, Chart House
retook possession of the Premises as Tenant under the Lease, and thereafter
assigned the Lease to Pizza Nova III, a California limited partnership ("Pizza
III"), pursuant to that certain Assignment of Lease dated September 19, 1995
(the "Third Assignment").
D. Pizza III thereafter assigned the Lease to Assignor, as consented to by
that certain Consent to Lease Assignment Agreement dated September 4, 1997 (the
"Fourth Assignment").
E. The Lease, the First Amendment, the First Assignment, the Second
Assignment, the Third Assignment and the Fourth Assignment are collectively
herein referred to as the "Lease."
F. Assignor desires by this Agreement to assign all of its right, title
and interest in and to the Lease to Assignee subject to the terms of the Lease
and this Agreement.
G. Landlord and Assignee desire by this Agreement to amend the Lease as
hereinafter provided and Assignor desires to consent to the same.
T E R M S
- - - - -
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants herein contained, and good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. DEFINED TERMS. All initial capitalized terms used in this Agreement shall
have the same meaning given such terms in the Lease, unless otherwise defined in
this Agreement.
2. ASSIGNMENT
2.1. ASSIGNMENT. Assignor assigns to Assignee all of its right, title
and interest in the Lease as of the Effective Date.
2.2. ASSUMPTION. Assignee acknowledges that it has received a copy of
the Lease from Assignor and that Assignee assumes and agrees to be bound by and
perform all covenants, conditions, obligations and duties of Assignor under the
Lease. Without limiting the preceding, Assignee further agrees that it shall pay
to Landlord, upon demand, any Rent (including without limitation, Minimum Rent,
Percentage Rent and Additional Rent) which (a) shall be outstanding against
Assignor as of the Effective Date and which Assignor has failed to pay to
Landlord and/or (b) which, as a result of any adjustment provided in the Lease,
may become due against insufficient payment(s) of any previously paid sum(s).
2.3. ASSIGNOR'S OBLIGATIONS. Assignor shall remain obligated to
Landlord for the full performance of all covenants, conditions, obligations and
duties required of Tenant under the Lease, including during any Option Term, and
shall not be relieved of any such performance thereunder as a result of this
assignment of the Lease. However, as of the Effective Date, Assignor shall have
no continuing or future possessory rights in and to the Premises and thereafter
waives any right it may possess to receive notice from Landlord relative to this
Agreement or the Lease.
2.4. SECURITY DEPOSIT. Assignor and Assignee acknowledge that Landlord
does not hold any Security Deposit on behalf of either Assignor or Assignee or
otherwise in connection with the Lease.
2.5. CONSENT OF LANDLORD. Landlord's consent to the assignment of the
Lease to Assignee shall be effective only at such time as this Agreement has
been executed by all of the parties hereto.
2.6. ASSIGNOR'S REPRESENTATIONS. Assignor represents and covenants as
follows:
2.6.1. That the Lease is in full force and effect, Assignor's interest
therein is free and clear of all encumbrances, and Assignor has fully performed
all covenants and obligations under the Lease and has not done or permitted any
acts in violation of the covenants contained in the Lease.
2.6.2. That it has not heretofore assigned, mortgaged or otherwise
transferred, amended or encumbered, voluntarily or involuntarily, the Lease or
its interest therein.
2.6.3. That Landlord has fully performed all the covenants and
obligations on its part to be performed and observed under the Lease; that
Landlord has not done or permitted any act or acts in violation of any of the
covenants, provisions or terms thereof; and that there is not now in existence
any reason or claim to offset, deduct or decrease any payments due under the
Lease.
2.6.4 That to the best of its knowledge there are no Hazardous Materials, and
that Tenant has no reason to suspect that there are any Hazardous Materials,
present in or about the Premises.
2.6.5 That it will defend, indemnify and hold Assignee harmless from and
against any obligations of Tenant under the Lease arising or accruing prior to
the Effective Date.
2.7. ASSIGNEE'S REPRESENTATIONS. Assignee acknowledges and represents
that it has inspected the Premises and hereby agrees to take the Premises in the
condition existing upon the Effective Date.
2.8. NOTICE TO ASSIGNEE; CHART HOUSE. Landlord shall not be required
to provide any notice to Assignor, and Assignor hereby waives any right to
receive any such notice from Landlord; provided, however, the foregoing shall
not affect Landlord's obligation to provide notice to Chart House concerning any
default of Assignor under the Lease, or concerning any proposed amendment of the
Lease, further provided however, that Landlord shall only be required to give
such notices to Chart House until the "Release Date" as defined herein. Upon the
Release Date, Chart House shall no longer have any liability under the Lease.
The Release Date shall be the earlier to occur of: (i) December 31, 2003, or
(ii) twenty-four (24) months after the Effective Date, provided that Assignee
operates under the Lease during such period of time without a reporting,
monetary or other material default.
3. AMENDMENT OF LEASE
3.1. AMENDMENT OF LEASE. The Lease is amended as of the Effective Date,
unless another date is expressly provided, as follows:
3.1.1. Section 1.03 (Tenant's Mailing Address) of the Lease shall be
deleted in its entirety and replaced with the following:
26131 Marguerite Parkway, Suite A
Mission Viejo, CA 92692
With a copy to:
Ernest T. Klinger
3780 Kilroy Airport Way, Suite 200
Long Beach, CA 90806
3.1.2 Section 1.06 (Term) of the Lease shall be modified as follows: The
fourth (4th) paragraph of Section 1.06 shall be modified to delete the second
sentence, beginning "As provided in Section 3.02," and ending at "or food
service."
3.1.3 Section 1.08 (Permitted Use) of the Lease shall be deleted in its
entirety and replaced with the following:
The Premises shall be used for the operation of a full-service, sit-down
restaurant serving food items substantially similar to those indicated on
Tenant's menu attached hereto as Exhibit "A," and incorporated herein by this
reference, and for no other use or purpose whatsoever; provided, however,
incidental to Tenant's food service operation in the Premises, and subject to
any applicable legal requirements, Tenant may (i) serve beer and wine for
on-site consumption by its restaurant patrons, and (ii) provide take-out and
delivery service in connection with its restaurant business in the Premises.
3.1.4 Section 1.09 (Tenant's Trade Name) of the Lease is hereby deleted in
its entirety and replaced with the following: BJ's Pizza and Grill.
3.1.5 Section 2.04c(2) and (3) of the Lease shall be modified to provide
that at the end of each such subsection the following language shall be
inserted:
Notwithstanding the foregoing, Landlord shall provide Tenant with at least five
(5) days' notice of any such planned closure (except in the case of an
emergency, in which no such notice shall be required), and to the extent any
such closure results in Tenant being unable from the standpoint of prudent
business judgment, to operate its business in the Premises, and such inability
to operate continues for more than two (2) continuous days, then thereafter
Minimum Rent shall abate until such time as Tenant is reasonably able to
recommence operation of its business in the Premises.
3.1.6 Section 2.04c(6) of the Lease shall be modified by adding the
following at the end of such paragraph:
Any such rules and regulations governing the use of parking areas shall be
reasonable and nondiscriminatory.
3.1.7 Section 2.04c(11) of the Lease shall be modified by adding the
following at the end of such paragraph:
Notwithstanding the foregoing, such carts or kiosks shall not be located within
an area one hundred feet (100') directly in front of the storefront of the
Premises, measured by a straight line running parallel with the two side
exterior demising walls of the Premises and continuing for fifty feet (50')
directly in front of the storefront of the Premises.
3.1.8 Section 2.04c (Landlord's Reservation of Rights) of the Lease shall be
modified to provide a new subsection (13) to be inserted at the end of Section
2.04c as follows:
Notwithstanding Landlord's exercise of its rights hereunder, except to the
extent reasonably necessary to comply with any legal requirements, Landlord
shall not modify the Common Areas in a manner that materially adversely impacts
access to, or egress from, the Premises, or visibility of the Premises.
3.1.9 Section 2.06c(7) of the Lease shall be modified by adding the
following at the end of such paragraph:
The foregoing parking restrictions shall not apply to customers of Tenant.
3.1.10 Section 3.02 (Option Term) of the Lease shall be modified to
provide that the last two paragraphs of such Section 3.02, beginning "However,
in the event Landlord elects", and ending "written exercise of Option", are
hereby deleted in their entirety.
3.1.11 Section 5.02a (Statement of Gross Sales) of the Lease is hereby
modified as follows: In the third sentence of Section 5.02(a), the word
"annual" shall be inserted between the phrase "all statements".
3.1.12 Section 5.02(f) (Maintenance of Records) of the Lease shall be
modified as follows: In the third line of Section 5.02(f), the word
"accounting" shall be inserted between the phrase "corporate offices".
3.1.13 Section 5.02(g) (Landlord's Right to Audit) of the Lease shall be
modified as follows: In the third (3rd) sentence of Section 5.02(g), the words
"principal place" shall be deleted and inserted therein shall be the words
"corporate accounting offices."
3.1.14 Section 9.02(d) (Prohibited Activities) of the Lease shall be
modified to provide that at the end of such Section 9.02(d) the following
language shall be inserted:
Subject to any applicable legal requirements and Landlord's prior written
approval, not to be unreasonably withheld, provided that Landlord may impose
such reasonable conditions as it deems necessary in connection with such
activities, Tenant may provide valet parking services for Tenant's restaurant
patrons at the Premises.
3.1.15 Section 9.03(a) (Continuous Use) of the Lease shall be modified to
include the following language at the end of such Section 9.03(a):
Notwithstanding the foregoing to the contrary, Tenant may close the Premises
for a reasonable period of time for the purpose of making any necessary repairs
or improvements to the Premises, provided that the total number of days in any
calendar year does not exceed ten (10) days, and further provided that, except
in the event of an emergency or as a result of damage or destruction of the
Premises, such closures shall not occur at any time between December 10 and
January 10 of any year, or at any time that Landlord shall reasonably require
Tenant to postpone any such planned closure, for example, during certain holiday
or promotional events at the Shopping Center, and further provided that in any
event Tenant shall give Landlord at least five (5) days' written notice of any
such planned closure.
3.1.16 Section 10.02 (Tenant's Maintenance) of the Lease shall be modified
to provide that the following language shall be inserted at the end of such
Section 10.02:
A rating of less than "A" shall not be deemed a default hereunder if Tenant
immediately after being notified by any governing agency that it has failed to
maintain an "A" rating, exercises its best efforts to regain an "A" rating as
soon as reasonably possible, and further provided that in such event Tenant
shall keep Landlord reasonably and regularly informed of all such efforts
undertaken by Tenant to regain such an "A" rating.
3.1.17 Section 11 (Alterations) of the Lease shall be modified to provide that
the following subsection shall be inserted at the end of such Section 11:
11.04 Emergency Repairs. Notwithstanding the foregoing, this Section 11
------------------
shall not prevent Tenant from making any repairs to the Premises, without
Landlord's prior approval, which are reasonably necessary in the event of an
emergency which poses substantial risk of harm to life or property, and where
under the circumstances it would be impracticable for Tenant to give Landlord
the notice otherwise required by this Section 11; then in such event, Tenant may
make such repairs, provided Tenant shall immediately attempt to give Landlord
telephonic or any other type of reasonable notice under the circumstances of
such emergency and Tenant's undertaking of such repairs.
3.1.18 Section 13.02 ("Tennat's Public Liability and Property Damage
Insurance") of the Lease shall be modified as follows: In the third (3rd) line
of Section 13.02 the figure "$1,000,000" shall be deleted and inserted therein
shall be the figure "$2,000,000".
3.1.19 Section 13.11 (Other Insurance Matters) of the Lease is hereby
modified to provide that in subparagraph "a" of such Section 13.11, the phrase
"A status" is hereby deleted, and replaced with the phrase "A- status."
3.1.20 Section 15.04b ("Partial Taking of Common Areas") of the Lease shall be
modified as follows: In the fourth (4th) line of Section 15.04b, after the
words "parking area" shall be inserted "between the Premises and the Shopping
Center theater".
3.1.21 Section 16.08 ("Intercompany Transfer") of the Lease shall be modified
to provide that at the end of such Section 16.08 the following language shall be
inserted:
Notwithstanding anything to the contrary contained in this Article 16, and so
long as Tenant is not in default under this Lease beyond any applicable period,
Tenant shall have the right, without the prior written consent of Landlord, to
assign the Lease to a corporation or other entity which: [a] is Tenant's parent
organization; or [b] is a wholly-owned subsidiary of Tenant; or [c] is a
corporation of which Tenant or Tenant's Parent Organization owns in excess of
fifty percent (50%) of the outstanding capital stock, or other majority
ownership equity interest; or [d] as a result of a consolidation or merger with
Tenant and/or Tenant's parent corporation shall own substantially all the
capital stock of Tenant or Tenant's parent corporation; or [e] is an entity
which purchases or otherwise acquires all or substantially all of Tenant's
assets or stock. Any assignment of the Lease pursuant to [a], [b], [c], [d], or
[e] above shall be subject to the following conditions: (1) Tenant shall remain
fully liable during the unexpired Lease Term, including any option terms; (2)
any such assignment shall be subject to all of the terms, covenants and
conditions of this Lease and any such transferee shall expressly assume for the
benefit of Landlord the obligations of Tenant under this Lease by a document
prepared by Landlord; (3) the resulting entity pursuant to [d] or [e] above
shall have a net worth and net assets equal to or greater than the net worth and
net assets of Tenant as of the Effective Date; (4) Tenant shall give Landlord
notice of such assignment at least thirty (30) days prior to its effective date
(which notice shall include all documentation necessary to verify the conditions
contained in this paragraph); and (5) Tenant shall reimburse Landlord for
Landlord's reasonable documentation costs incurred in conjunction with the
processing and preparation of documentation for any such assignment, provided
said costs shall not exceed One Thousand Dollars ($1,000.00) per transaction.
Anything to the contrary notwithstanding, Transfers of stock between or among
the present stock holders of Tenant, or partnership interests between the
current partners of Tenant, the issuance of additional capital stock of Tenant,
a public offering of Tenant's capital stock on a recognized national securities
exchange, or a transfer or series of transfers of less than a majority of
Tenant's capital stock (except in the event that Tenant is a publicly-traded
corporation on a recognized national securities exchange, then a transfer or
series of transfers of a majority of Tenant's capital stock shall not be deemed
a change of control for purposes of this Article 16), but all such transactions
shall be subject to subparagraph (1) of this Section 16.08.
3.1.22 Section 27.01 (Tenant's Restricted Right to Signs) of the Lease is
hereby modified to provide that Landlord's prior written consent as required in
the last line of the first paragraph of such Section 27.01 shall not be
unreasonably withheld.
3.1.23 Section 27.02 (Signs - - Center) of the Lease is hereby modified to
provide that Landlord's consent as required by such Section 27.02, shall not be
unreasonably withheld, and further, that Landlord's exercise of it's rights to
use for Landlord's signs the exterior and the roof of the building in which the
Premises is located, shall not materially adversely interfere with the
visibility of Tenant's signs.
3.2 CONSENT OF CHART HOUSE. Chart House hereby consents to the
amendment of Lease as provided in this Agreement.
4. FEE. Assignor shall pay to Landlord, upon execution of this
Agreement by Assignor and Assignee and delivery thereof to Landlord, the sum of
$500, which Assignor agrees is fair compensation for Landlord's handling and
processing of this transaction and as required pursuant to the provisions of
Section 16.05 of the Lease.
5. EFFECT. Except as expressly modified by this Agreement, the Lease
shall remain unchanged and in full force and effect.
6. NO MODIFICATION OR WAIVER. Except as otherwise expressly set forth
herein, nothing in this Agreement shall be deemed to waive or modify any of the
provisions of the Lease.
7. NO OFFER. Landlord and Tenant hereby agree that Landlord's
submission of this Agreement to Tenant shall not constitute an offer to amend
the Lease. This Agreement shall be effective only, and is expressly conditioned,
upon the execution of this Agreement by Landlord and Tenant.
8. BROKERS. Assignor and Assignee shall each hold Landlord, and each
other, harmless from, and indemnify Landlord, and each other. against, all
damages (including attorneys' fees and costs) resulting from any claims that may
be asserted against Landlord, or the other party, by any broker, finder or other
person with whom Assignor and/or Assignee, as the case may be, has, or
purportedly has, dealt in connection with the transactions set forth in this
Agreement.
9. CAPTIONS. The captions and Section numbers appearing in this
Agreement are for convenience only and are not a part of this Agreement and do
not in any way limit, amplify, define, construe or describe the scope or intent
of the terms or provisions of this Agreement.
10. SCHEDULES. The Schedules, if any, attached to this Agreement are
hereby incorporated herein and made a part hereof.
11. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
12. SUCCESSORS. The provisions of this Agreement shall bind and inure
to the benefit of the heirs, representatives, successors and assigns of the
parties hereto.
13. ATTORNEYS' FEES. In the event that at any time after the date
hereof either Landlord, Assignor or Assignee shall institute any action or
proceeding against the other(s) relating to this Agreement, then and in that
event, the party(ies) not prevailing in such action or proceeding shall
reimburse the prevailing party for the reasonable expenses of attorneys' fees
and all costs and disbursements incurred therein by the prevailing party.
IN WITNESS WHEREOF, this Agreement has been entered into by the parties as
of the day and year first above written.
LANDLORD: GROSSMONT SHOPPING CENTER CO.,
a California Limited Partnership
By: DENELE CO., an Illinois limited partnership,
its general partner
By DELEN MANAGEMENT CO.,
an Illinois corporation, its general partner
By:
Denise Stefan
Chairman of the Board
ASSIGNOR: PIZZA NOVA - LA MESA, INC.,
a California corporation
By:
Name:
Title:
By:
Name:
Title:
ASSIGNEE: CHICAGO PIZZA & BREWERY, INC.,
a California corporation
By:
Name: Ernest T. Klinger
Title: President and Co-chairman of the Board
By:
Name:
Title:
CONSENTED TO BY:
CHART HOUSE: CHART HOUSE ENTERPRISES, INC.,
a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
<PAGE>
