<PAGE> 1
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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the Thirteen Weeks Ended October 24, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number: 0-28930
ROADHOUSE GRILL, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C>
Florida 65-0367604
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
</TABLE>
2703-A Gateway Drive, Pompano Beach, Florida 33069
(Address of principal executive offices and zip code)
Registrant's telephone number (954) 957-2600
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 [ ]
The number of shares of the registrant's common stock outstanding as of
December 3, 1999 was 9,708,741.
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ROADHOUSE GRILL, INC.
FORM 10-Q
THIRTEEN WEEKS ENDED OCTOBER 24, 1999
INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
Page No.
--------
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheets as of October 24, 1999 (unaudited)
and April 25, 1999............................................................... 2
Consolidated Statements of Operations for the Thirteen Weeks and
Twenty-Six Weeks Ended October 24, 1999 and October 25, 1998
(unaudited)....................................................................... 3
Consolidated Statement of Changes in Shareholders' Equity
for the Twenty-Six Weeks Ended October 24, 1999 (unaudited) ..................... 4
Consolidated Statements of Cash Flows for the Twenty-Six Weeks Ended
October 24, 1999 and October 25, 1998 (unaudited) ................................ 5
Notes to Consolidated Financial Statements............................................ 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations......................................................... 8
PART II. OTHER INFORMATION
Item 1. Legal Proceedings..................................................................... 15
Item 6. Exhibits and Reports on Form 8-K...................................................... 15
Signatures ...................................................................................... 16
Exhibit Index ...................................................................................... 17
</TABLE>
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PART I
Item 1. Financial Statements
ROADHOUSE GRILL, INC.
Consolidated Balance Sheets
October 24, 1999 and April 25, 1999
($ in thousands, except per share data)
<TABLE>
<CAPTION>
October 24, April 25,
1999 1999
------------- -----------
(Unaudited)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents ................................................... $ 482 $ 975
Accounts receivable ......................................................... 545 1,279
Inventory ................................................................... 1,236 1,181
Pre-opening costs, net ...................................................... -- 1,222
Deferred tax assets, net .................................................... 2,539 2,270
Prepaid expenses ............................................................ 1,924 992
------- -------
Total current assets ...................................................... 6,726 7,919
Note receivable ................................................................ 167 167
Property & equipment, net ...................................................... 83,259 77,821
Intangible assets, net of accumulated amortization of $301 and $227 at
October 24, 1999 and April 25, 1999, respectively ............................ 2,361 2,031
Other assets ................................................................... 3,757 3,345
------- -------
Total assets ............................................................. $96,270 $91,283
======= =======
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable ............................................................. $ 9,563 $ 4,692
Accrued expenses ............................................................. 4,536 4,476
Short-term note payable ...................................................... 1,000 --
Current portion of long-term debt ............................................ 973 1,047
Current portion of capitalized lease obligations ............................. 1,572 1,593
------- -------
Total current liabilities ................................................ 17,644 11,808
Long-term debt ................................................................. 18,014 18,458
Capitalized lease obligations .................................................. 9,914 10,340
------- -------
Total liabilities ......................................................... 45,572 40,606
Shareholders' equity:
Common stock $.03 par value. Authorized 30,000,000 shares;
issued and outstanding 9,708,741 shares as of
October 24, 1999 and April 25, 1999 .......................................... 291 291
Additional paid-in capital ..................................................... 50,039 50,039
Retained earnings .............................................................. 368 347
------- -------
Total shareholders' equity ............................................... 50,698 50,677
Commitments and contingencies (Note 2) ......................................... -- --
------- -------
Total liabilities and shareholders' equity ............................... $96,270 $91,283
======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
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ROADHOUSE GRILL, INC.
Consolidated Statements of Operations
For the Thirteen Weeks and Twenty-Six Weeks Ended
October 24, 1999 and October 25, 1998
($ in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-Six Weeks Ended
----------------------------- -----------------------------
October 24, October 25, October 24, October 25,
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Total revenues ............................ $ 32,331 $ 28,181 $ 67,563 $ 57,221
Cost of restaurant sales:
Food and beverage ...................... 10,997 9,431 22,741 19,039
Labor and benefits ..................... 9,413 8,058 19,427 16,291
Occupancy and other .................... 7,054 5,214 14,234 10,942
Pre-opening expenses ................... 529 367 576 730
----------- ----------- ----------- -----------
Total cost of restaurant sales ......... 27,993 23,070 56,978 47,002
Depreciation and amortization ............. 2,032 1,839 4,044 3,556
General and administrative expenses ....... 1,980 1,698 4,114 3,329
----------- ----------- ----------- -----------
Total operating expenses ............... 32,005 26,607 65,136 53,887
----------- ----------- ----------- -----------
Operating income ....................... 326 1,574 2,427 3,334
Other income (expense):
Interest expense, net (596) (585) (1,177) (1,082)
Equity in net (loss) of
affiliates............................ -- (35) -- (3)
----------- ----------- ----------- -----------
Total other (expense) ................ (596) (620) (1,177) (1,085)
----------- ----------- ----------- -----------
Income (loss) before taxes and
cumulative effect of change in
accounting principle................ (270) 954 1,250 2,249
Income tax expense (benefit).......... (58) 50 276 84
----------- ----------- ----------- -----------
Income (loss) before cumulative
effect of change in accounting
principle........................... (212) 904 974 2,165
Cumulative effect of change in accounting
principle (net of tax benefit of $269).. -- -- (953) --
----------- ----------- ----------- -----------
Net income (loss) ......................... $ (212) $ 904 $ 21 $ 2,165
=========== =========== =========== ===========
Basic net income (loss) per common share:
Basic income (loss) before cumulative
effect of change in accounting
principle ............................ $ (0.02) $ 0.10 $ 0.10 $ 0.23
Cumulative effect of change in
accounting principle ................. -- -- (0.10) --
----------- ----------- ----------- -----------
Basic net income (loss) per common
share ................................ $ (0.02) $ 0.10 $ 0.00 $ 0.23
=========== =========== =========== ===========
Diluted net income (loss) per common share:
Diluted income (loss) before cumulative
effect of change in accounting
principle ............................ $ (0.02) $ 0.10 $ 0.10 $ 0.23
Cumulative effect of change in
accounting principle ................. -- -- (0.10) --
----------- ----------- ----------- -----------
Diluted net income (loss) per common
share .................................. $ (0.02) $ 0.10 $ 0.00 $ 0.23
=========== =========== =========== ===========
Weighted-average common shares outstanding 9,708,741 9,423,027 9,708,741 9,365,719
=========== =========== =========== ===========
Weighted-average common shares and share
equivalents outstanding - assuming
dilution................................ 9,708,741 9,486,874 9,836,081 9,507,768
=========== =========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
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ROADHOUSE GRILL, INC.
Consolidated Statement of Changes in Shareholders' Equity
For the Twenty-Six Weeks Ended October 24, 1999
($ in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Common Stock Additional
------------------------ Paid-in Retained
Shares Amount Capital Earnings Total
--------- --------- --------- ----------- ----------
<S> <C> <C> <C> <C> <C>
Balance April 25, 1999 . 9,708,741 $ 291 $ 50,039 $ 347 $ 50,677
Net income ............. -- -- -- 21 21
--------- --------- --------- ---------- ---------
Balance October 24, 1999 9,708,741 $ 291 $ 50,039 $ 368 $ 50,698
========= ========= ========= ========== =========
</TABLE>
See accompanying notes to consolidated financial statements.
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ROADHOUSE GRILL, INC.
Consolidated Statements of Cash Flows
For the Twenty-Six Weeks Ended October 24, 1999 and October 25, 1998
($ in thousands)
(Unaudited)
<TABLE>
<CAPTION>
October 24, October 25,
1999 1998
---------- -----------
<S> <C> <C>
Cash flows from operating activities
Net income ............................................ $ 21 $ 2,165
Adjustments to reconcile net income
to net cash provided by operating activities:
Depreciation and amortization ....................... 4,044 4,286
Equity in net loss of affiliate ..................... -- 3
Cumulative effect of change in accounting principle . 1,222 --
Deferred tax benefit ................................ (269) --
Changes in assets and liabilities:
(Increase) in accounts receivable ................... (63) (110)
(Increase) in inventory ............................. (55) (43)
(Increase) in pre-opening costs ..................... -- (381)
(Increase) in prepaid expense ....................... (932) (1,083)
(Increase) decrease in other assets ................. (296) 246
Increase (decrease) in accounts payable ............. 4,871 (1,282)
Increase (decrease) in accrued expenses ............. 60 (131)
-------- --------
Net cash provided by operating activities ......... 8,603 3,670
Cash flows from investing activities
Dividends received from affiliate ..................... -- 93
Advances to affiliates, net ........................... -- 9
Payments for intangibles .............................. (404) (20)
Acquisition of restaurant, net of cash acquired ....... -- (1,359)
Proceeds from payment on note receivable from affiliate -- 1,000
Proceeds from payment on notes receivable ............. -- 72
Proceeds from sale-leaseback transactions ............. 6,733 861
Purchase of property and equipment .................... (15,175) (2,946)
-------- --------
Net cash used in investing activities ............. (8,846) (2,290)
Cash flows from financing activities
Issuance of common stock .............................. -- 15
Proceeds from short-term note payable ................. 1,000 --
Repayments of long-term debt .......................... (518) (336)
Payments on capital lease obligations ................. (732) (576)
-------- --------
Net cash used in financing activities ............. (250) (897)
(Decrease) increase in cash and cash equivalents ......... (493) 483
Cash and cash equivalents at beginning of period ......... 975 3,555
-------- --------
Cash and cash equivalents at end of period ............... $ 482 $ 4,038
======== ========
Supplementary disclosures:
Interest paid ......................................... $ 1,427 $ 1,275
======== ========
Income taxes paid ..................................... $ 881 $ 1,155
======== ========
</TABLE>
Non-cash investing and financing activities:
During the twenty-six weeks ended October 24, 1999, the Company entered into
four capital lease transactions for real estate in the amount of $918,000.
During the twenty-six weeks ended October 25, 1998, the Company issued
400,000 shares of common stock to Berjaya Cayman. The transaction was
consummated pursuant to approval by the Board of Directors to convert $1.5
million of debt outstanding into common stock at a price of $3.75 per share.
During the twenty-six weeks ended October 25, 1998, the Company entered into
a capital lease transaction for real estate in the amount of $1.2 million.
See accompanying notes to consolidated financial statements.
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ROADHOUSE GRILL, INC.
Notes to Consolidated Financial Statements
1. Basis of Presentation
The financial statements of Roadhouse Grill, Inc. (the "Company") for
the thirteen weeks and twenty-six weeks ended October 24, 1999 and October
25, 1998, are unaudited and reflect all adjustments (consisting of normal
recurring adjustments) which are, in the opinion of management, necessary
for a fair presentation of the financial statements for the interim
periods. The financial statements should be read in conjunction with the
notes to consolidated financial statements included herein, together with
management's discussion and analysis of financial condition and results of
operations, contained in the Company's Annual Report on Form 10-K for the
fifty-two weeks ended April 25, 1999 ("fiscal year 1999").
The Company operates on a fifty-two or fifty-three week fiscal year.
Each fiscal quarter consists of thirteen weeks, except in the case of a
fifty-three week year, in which the fourth fiscal quarter consists of
fourteen weeks.
The results of operations for the thirteen weeks and twenty-six weeks
ended October 24, 1999 are not necessarily indicative of the results for
the entire fiscal year ending April 23, 2000.
Certain prior year balances have been reclassified to conform to the
current year presentation.
2. Commitments and Contingencies
The Company is a party to legal proceedings arising in the ordinary
course of business, many of which are covered by insurance. In the opinion
of management, disposition of these matters will not materially affect the
Company's financial condition.
During the thirteen weeks ended October 24, 1999, the Company completed
construction and opened four new Company-Owned restaurants. During the
thirteen weeks ended October 24, 1999, construction was underway on twelve
sites which are expected to open during the third and fourth quarters of
fiscal year 2000. The estimated aggregate cost to complete these
restaurants is approximately $10.8 million. In addition, as of October 24,
1999, the Company had contracted to purchase or lease eleven additional
sites for new restaurant development.
3. Adoption of New Accounting Standards
In April 1998, the AICPA Accounting Standards Executive Committee
issued Statement of Position 98-5, "Reporting on the Costs of Start-Up
Activities" ("SOP 98-5"). SOP 98-5 defines start-up activities broadly
(including organizational costs) and requires that the cost of start-up
activities be expensed as incurred. SOP 98-5 amends provisions of a number
of existing SOP's and audit and accounting guides. SOP 98-5 is effective
for fiscal years beginning after December 15, 1998. In previous years, the
Company's accounting policy was to capitalize pre-opening costs and
amortize them over a one-year period. The Company adopted SOP 98-5 during
the first quarter of fiscal year 2000. The effect of initially applying the
provisions of SOP 98-5 is reported as a change in accounting principle at
the beginning of the first quarter of fiscal year 2000 as an expense within
the statements of operations in the amount of $953,000, net of income tax
benefit. Thereafter, all such costs are expensed as incurred and are
included in "pre-opening expenses" within the accompanying statements of
operations.
4. Leases
Pursuant to a $10.0 million funding commitment secured in July 1999
from CNL Fund Advisors, Inc. ("CNL"), the Company entered into
sale-leaseback transactions for new Roadhouse Grill restaurants. These
transactions were recorded as financing-type leases with no deferred gain.
As of October 24, 1999, the Company has available to it approximately $5.0
million in a sale-leaseback credit facility from CNL.
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5. Net Income (Loss) per Common Share ("EPS")
The calculation of basic EPS excludes all dilution and is based upon
the weighted average number of common shares outstanding during the year.
Diluted EPS reflects the potential dilution that would occur if securities
or other contracts to issue common stock were exercised or converted into
common stock. The following is a reconciliation of the numerators (net
income) and the denominators (common shares outstanding) of the basic and
diluted per share computations for net income:
<TABLE>
<CAPTION>
Thirteen Weeks Ended October 24, 1999 Twenty-Six Weeks Ended October 24, 1999
------------------------------------- ---------------------------------------
Net Income Shares Amount Net Income Shares Amount
---------- ------ ------ ---------- ------ ------
($ in thousands, except per share data )
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Net income available
to common shareholders .... $ (212) 9,708,741 $ (0.02) $ 21 9,708,741 $ 0.00
EFFECT OF DILUTIVE SECURITIES
Stock options ............... -- -- -- -- 127,340 --
--------- --------- -------- --------- --------- --------
DILUTED EPS ................. $ (212) 9,708,741 $ (0.02) $ 21 9,836,081 $ 0.00
========= ========= ======== ========= ========= ========
</TABLE>
Options to purchase 841,228 shares of common stock at a weighted
average exercise price of $5.25 per share were outstanding during the
thirteen weeks and twenty-six weeks ended October 24, 1999, but were not
included in the computation of diluted EPS because the Company recognized a
net loss during the quarter, and including such options would result in
anti-dilutive EPS.
<TABLE>
<CAPTION>
Thirteen Weeks Ended October 25, 1998 Twenty-Six Weeks Ended October 25, 1998
------------------------------------- -----------------------------------------
Net Income Shares Amount Net Income Shares Amount
---------- ------ ------ ---------- --------- ----------
($ in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C>
BASIC EPS
Net income (loss) available
to common shareholders .... $ 904 9,423,027 $0.10 $ 2,165 9,365,719 $ 0.23
EFFECT OF DILUTIVE SECURITIES
Stock options ............... -- 42,777 -- -- 76,884 --
Convertible debt ............ -- 21,070 -- -- 65,165 --
--------- --------- ----- --------- --------- ----------
DILUTED EPS ................. $ 904 9,486,874 $0.10 $ 2,165 9,507,768 $ 0.23
========= ========= ===== ========= ========= ==========
</TABLE>
Options to purchase 268,642 shares of common stock at a
weighted average exercise price of $6.70 per share were outstanding during
the thirteen weeks and twenty-six weeks ended October 25, 1998, but were
not included in the computation of diluted EPS because the options'
exercise price was greater than the average market price of the common
shares. The options, which expire on varying dates, were still outstanding
as of October 25, 1998.
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<PAGE> 9
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 consolidated financial statements and notes thereto, included
elsewhere in this Form 10-Q.
As of December 3, 1999, Roadhouse Grill, Inc. owns and operates 62
full-service, casual dining restaurants under the name "Roadhouse Grill".
In addition, Roadhouse Grill, Inc. franchises two full-service casual
dining restaurants. The Company was incorporated in October 1992 and opened
the first Company-Owned restaurant in Pembroke Pines, Florida in March of
1993. Since then, the Company has opened 61 additional restaurants in 11
states. The two franchises are located in Las Vegas, Nevada.
The Company's revenues are derived primarily from the sale of food and
beverages. Sales of alcoholic beverages accounted for approximately 10.7%
and 10.6% of total revenues for the thirteen weeks and the twenty-six weeks
ended October 24, 1999, respectively. Franchise and management fees have
accounted for less than 1% of the Company's total revenues for all periods
since its inception.
The Company's new restaurants can be expected to incur above-average
costs during the first few months of operation. In prior years, pre-opening
costs, such as employee recruiting and training costs and other initial
expenses incurred in connection with the opening of a new restaurant, were
amortized over a twelve-month period commencing with the first full
accounting period that the restaurant was open. The Company adopted the
provisions of SOP 98-5 during the first quarter of fiscal year 2000 and
currently expenses all pre-opening costs as incurred.
The average cash investment, excluding land costs and pre-opening
expenses, required to open each of the Roadhouse Grill restaurants opened
by the Company prior to October 24, 1999 was approximately $1.3 million.
The average land acquisition cost for the 14 restaurant sites owned by the
Company was approximately $902,000. The Company has obtained financing in
connection with the acquisition of its owned properties, which financing
generally has required a down payment of 10% of the purchase price. The
average annual occupancy cost for the restaurant sites leased by the
Company is approximately $100,000 per site. The Company expects that the
average cash investment required to open its prototype restaurants,
including pre-opening expenses but excluding real estate costs, will be
between $1.1 million and $1.6 million, depending upon whether the Company
converts an existing building or constructs a new restaurant from the
ground up.
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<PAGE> 10
Results of Operations
The following table sets forth for the periods indicated certain selected
statements of operations data expressed as a percentage of total revenues.
<TABLE>
<CAPTION>
Thirteen Weeks Ended Twenty-Six Weeks Ended
----------------------------------- --------------------------------------
October 24, 1999 October 25, 1998 October 24, 1999 October 25, 1998
---------------- ---------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Total revenues.................... 100.0% 100.0% 100.0% 100.0%
Cost of restaurant sales:
Food and beverage............. 34.0 33.5 33.7 33.3
Labor and benefits............ 29.1 28.6 28.8 28.5
Occupancy and other........... 21.9 18.5 21.0 19.1
Pre-opening expenses......... 1.6 1.3 0.9 1.3
----- ----- ----- ------
Total cost of restaurant sales 86.6 81.9 84.4 82.2
Depreciation and amortization..... 6.3 6.5 6.0 6.2
General and administrative........ 6.1 6.0 6.1 5.8
----- ----- ----- ------
Total operating expenses....... 99.0 94.4 96.5 94.2
----- ----- ----- ------
Operating income ............. 1.0 5.6 3.5 5.8
Other income (expense):
Interest expense, net......... (1.8) (2.1) (1.7) (1.9)
Equity in net (loss) of
affiliates ................. 0.0 (0.1) 0.0 0.0
----- ----- ----- ------
Total other (expense)....... (1.8) (2.2) (1.7) (1.9)
----- ----- ----- ------
Income (loss) before income taxes
and cumulative effect of change
in accounting principle........ (0.8) 3.4 1.8 3.9
Income taxes (benefit)........... (0.2) 0.2 0.4 0.1
----- ----- ----- ------
Income (loss) before cumulative
effect of change in accounting
principle...................... (0.6) 3.2 1.4 3.8
Cumulative effect of change in
accounting principle........... 0.0 0.0 (1.4) 0.0
----- ----- ----- ------
Net income (loss)........... (0.6)% 3.2% 0.0% 3.8%
===== ===== ===== ======
</TABLE>
This Form 10-Q contains forward-looking statements, including statements
regarding, among other things (i) the Company's growth strategies, (ii)
anticipated trends in the economy and the restaurant industry and (iii) the
Company's future financing plans. In addition, when used in this Form 10-Q, the
words "believes," "anticipates," "expects," and similar words often are intended
to identify certain forward-looking statements. These forward-looking statements
are based largely on the Company's expectations and are subject to a number of
risks and uncertainties, many of which are beyond the Company's control. Actual
results could differ materially from these forward-looking statements as a
result of changes in trends in the economy and the restaurant industry,
reductions in the availability of financing, increases in interest rates,
adverse weather conditions, specifically in Florida and other southeast states
where 35 of the Company's restaurants are located, and other factors. In light
of the foregoing, there is no assurance that the forward-looking statements
contained in this Form 10-Q will, in fact, prove correct or occur. The Company
does not undertake any obligation to revise these forward-looking statements to
reflect future events or circumstances.
THIRTEEN WEEKS ENDED OCTOBER 24, 1999 ("FISCAL YEAR 2000 SECOND QUARTER")
COMPARED TO THIRTEEN WEEKS ENDED OCTOBER 25, 1998 ("FISCAL YEAR 1999
SECOND QUARTER")
Restaurants open. At October 24, 1999 there were 61 Company-Owned
restaurants open, including the Kendall Roadhouse Grill ("Kendall") restaurant
and the North Palm Beach Roadhouse Grill restaurant ("North Palm Beach"). On
July 12, 1999, the Company terminated its licensing agreement for North Palm
Beach and began operating the location as a Company-Owned restaurant. On August
14, 1998, the Company purchased the remaining 50% equity interest outstanding in
Kendall. At October 25, 1998, there were 47 Company-Owned restaurants open,
excluding North Palm Beach. This represents a 29.8% increase in the number of
Company-Owned restaurants. In addition, two franchised Roadhouse Grill
restaurants were open at October 24, 1999 in Las Vegas, Nevada.
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<PAGE> 11
Total revenues. Total revenues increased $4.2 million, or 14.7%, from $28.2
million for the fiscal year 1999 second quarter to $32.3 million for the fiscal
year 2000 second quarter. This increase is primarily attributable to sales
generated at the 12 new restaurants opened by the Company since the end of the
fiscal year 1999 second quarter and the inclusion of 100% of sales from both
Kendall and North Palm Beach this current fiscal quarter. Sales at comparable
stores for the fiscal year 2000 second quarter decreased 3.2% compared with
sales in the fiscal year 1999 second quarter. This was due, in large part, to
lower than expected sales for the current year quarter because of severe
tropical storms that swept across Florida and other southeastern states. These
storms, hurricane Floyd and tropical storm Irene, caused closures of a
significant number of Roadhouse Grill restaurants in the affected areas (in some
cases up to four days) due to mandatory evacuations, power outages and
significant flooding. In addition to the actual closure of restaurants, normal
activities of the population base from which the Company draws its dining guests
changed dramatically in the affected storm areas prior to and after the storms.
This also had a negative impact on the Company's sales in fiscal year 2000
second quarter. The dollar amount of lost sales due to the storms is
indeterminable. The number of restaurants included in the same store sales base
for the fiscal year 2000 second quarter was 42. Twenty-four of these restaurants
were located in Florida and 11 restaurants were located in other southeastern
states.
Food and beverage. Food and beverage costs increased $1.6 million, or
16.6%, to $11.0 million in the fiscal year 2000 second quarter from $9.4 million
in the fiscal year 1999 second quarter. This increase is primarily attributable
to the opening and operating of 12 new restaurants since the end of fiscal year
1999 second quarter and the operations of both Kendall and North Palm Beach. In
addition, the Company incurred higher than expected beef costs in the fiscal
year 2000 second quarter. Beef costs were approximately 11% higher than what the
Company paid for similar products in early calendar year 1999. As a percentage
of sales, food and beverage costs increased by 0.5 percentage points to 34.0%
for the fiscal year 2000 second quarter from 33.5% for the fiscal year 1999
second quarter.
Labor and benefits. Labor and benefits costs increased $1.4 million to $9.4
million in the fiscal year 2000 second quarter, or 16.8%, from $8.1 million in
the fiscal year 1999 second quarter. The increase is primarily due to the
opening and operating of 12 new restaurants since the end of fiscal year 1999
second quarter and the operations of both Kendall and North Palm Beach. As a
percentage of sales, labor and benefits costs increased by 0.5 percentage points
to 29.1% for the fiscal year 2000 second quarter from 28.6% for the fiscal year
1999 second quarter. This percentage increase is principally due to the fixed
nature of the cost of restaurant management labor and lower than expected sales
as previously described. This resulted in a percentage increase in labor and
benefits over the prior year comparable period.
Occupancy and other. Occupancy and other costs increased $1.8 million to
$7.1 million in the fiscal year 2000 second quarter, or 35.3%, from $5.2 million
in the fiscal 1999 second quarter. The increase is primarily due to the opening
and operating of 12 new restaurants since the end of fiscal year 1999 second
quarter and the operations of both Kendall and North Palm Beach. As a percentage
of sales, occupancy and other costs increased by 3.4 percentage points from
18.5% for the fiscal year 1999 second quarter to 21.9% for the fiscal year 2000
second quarter. This increase is due, in part, to increased marketing costs
during the fiscal year 2000 second quarter compared to the fiscal year 1999
second quarter. In addition, due to the fixed nature of occupancy and other
costs and lower than expected sales as previously described, occupancy and other
costs as a percentage of sales were higher than the prior year comparable
period.
Pre-opening expenses. Pre-opening expenses increased $162,000 to $529,000
in the fiscal year 2000 second quarter, or 44.1%, from $367,000 in the fiscal
year 1999 second quarter. The increase is primarily due to the adoption of
Statement of Position 98-5 "Reporting on the Costs of Start-Up Activities,"
which requires that pre-opening costs be expensed as incurred. Previously, the
Company amortized pre-opening costs over a twelve-month period. The Company
adopted SOP 98-5 in the fiscal year 2000 first quarter. Pre-opening expenses in
the fiscal year 2000 second quarter were primarily costs associated with the
opening of four new restaurants during that period.
Depreciation and amortization. Depreciation and amortization increased
$193,000 to $2.0 million in the fiscal year 2000 second quarter, or 10.5%, from
$1.8 million in the fiscal year 1999 second quarter. The increase is primarily
due to the opening and operating of 12 new restaurants since the end of the
fiscal year 1999 second quarter and the operations of Kendall. As a percentage
of sales, depreciation and amortization decreased by 0.2 percentage points from
6.5% for the fiscal year 1999 second quarter to 6.3% for the fiscal year 2000
second quarter.
General and administrative. General and administrative costs increased
$282,000 to $2.0 million in the fiscal year 2000 second quarter, or 16.6%, from
$1.7 million in the fiscal year 1999 second quarter. The increase is primarily
the result of the Company's substantial recruiting efforts. The Company
currently has approximately 40 managers in various stages of training that will
be ready for the expected openings later this fiscal year. The Company plans to
continue to maintain a pool of managers that are trained according to the
Roadhouse Grill philosophy. As a percentage of sales, general and administrative
costs were 6.1% of sales for the fiscal year 2000 second quarter compared to
6.0% in the prior year comparable period.
Interest expense. Interest expense increased $11,000 to $596,000 in the
fiscal year 2000 second quarter from $585,000 in the fiscal year 1999 second
quarter.
-10-
<PAGE> 12
Income taxes (benefit). The Company has a valuation allowance that offsets
a portion of its net deferred tax assets. Each quarter management determines,
based on projections, the realizability of the related deferred tax assets in
future years and reduces the allowance to the extent year-to-date income is
available to realize the benefit of the deferred tax assets. The reduction of
the valuation allowance currently minimizes income tax expense.
The Company incurred an income tax benefit of $58,000 due to the fiscal
year 2000 second quarter loss and incurred a $50,000 income tax expense in the
fiscal year 1999 second quarter, representing state income tax and alternative
minimum tax benefits and expense, respectively.
TWENTY-SIX WEEKS ENDED OCTOBER 24, 1999 ("FIRST SIX MONTHS OF FISCAL YEAR 2000")
COMPARED TO TWENTY-SIX WEEKS ENDED OCTOBER 25, 1998 ("FIRST SIX MONTHS OF FISCAL
YEAR 1999")
Total revenues. Total revenues increased $10.3 million, or 18.1%, from
$57.2 million in the first six months of fiscal year 1999 to $67.6 million in
the first six months of fiscal year 2000. This increase is primarily
attributable to the opening and operating of 12 new restaurants since the end of
the fiscal year 1999 second quarter, the operations of both Kendall and North
Palm Beach and sales from three new restaurants that were only open and
operating part of the first six months of fiscal year 1999. Sales at comparable
stores for the first six months of fiscal year 2000 decreased 1.1% compared with
sales in the first six months of fiscal year 1999. This was due, in large part,
to lower than expected sales during the fiscal year 2000 second quarter as
previously described.
Food and beverage. Food and beverage costs amounted to $22.7 million in the
first six months of fiscal year 2000, an increase of $3.7 million, or 19.4%,
from $19.0 million in the same period last year. This increase is primarily due
to the opening and operating of 12 new restaurants since the end of the fiscal
year 1999 second quarter, the operations of both Kendall and North Palm Beach
and the operation of three new restaurants that were only open and operating
part of the first six months of fiscal year 1999. In addition, the Company
incurred higher than expected beef costs in the fiscal year 2000 first and
second quarters. Beef costs were approximately 11% higher than what the Company
paid for similar products in early calendar year 1999. As a percentage of sales,
food and beverage increased by 0.4 percentage points to 33.7% for the first six
months of fiscal year 2000 from 33.3% for the first six months of fiscal year
1999.
Labor and benefits. Labor and benefits costs increased $3.1 million to
$19.4 million in the first six months of fiscal year 2000, or 19.2%, from $16.3
million in the first six months of fiscal year 1999. The increase is primarily
due to the opening and operating of 12 new restaurants opened since the end of
the fiscal year 1999 second quarter, the operations of both Kendall and North
Palm Beach and three new restaurants that were only open and operating part of
the first six months of fiscal year 1999. As a percentage of sales, labor and
benefits costs increased by 0.3 percentage points to 28.8% for the first six
months of fiscal year 2000 from 28.5% for the first six months of fiscal year
1999. The increase was primarily due to the fixed nature of the cost of
restaurant management labor and lower than expected sales in the fiscal year
2000 second quarter as previously described. This resulted in a percentage
increase in labor and benefits over the prior year comparable period.
Occupancy and other. Occupancy and other costs increased $3.3 million to
$14.2 million in the first six months of fiscal year 2000, or 30.1%, from $10.9
million in the first six months of fiscal year 1999. The increase is primarily
due to the opening and operating of 12 new restaurants since the end of the
fiscal year 1999 second quarter, the operations of both Kendall and North Palm
Beach and three new restaurants that were only open and operating part of the
first six months of fiscal year 1999. As a percentage of sales, occupancy and
other costs increased by 1.9 percentage points from 19.1% for the first six
months of fiscal year 1999 to 21.0% for the first six months of fiscal year
2000. This increase is due, in part, to increased marketing costs during the
first six months of fiscal year 2000 compared to the first six months of fiscal
year 1999. In addition, due to the fixed nature of occupancy and other costs and
lower than expected sales in the fiscal year 2000 second quarter as previously
described, occupancy and other costs as a percentage of sales were higher than
the prior year comparable period.
Pre-opening expenses. Pre-opening expenses decreased $154,000 to $576,000
in the first six months of fiscal year 2000, or 21.1%, from $730,000 in the
first six months of fiscal year 1999. The decrease is associated with the
adoption of Statement of Position 98-5 "Reporting on the Costs of Start-Up
Activities," which requires that pre-opening costs be expensed as incurred.
Previously, the Company amortized pre-opening costs over a twelve-month period.
The Company adopted SOP 98-5 in the fiscal year 2000 first quarter. Pre-opening
expenses in the first six months of fiscal year 2000 were primarily costs
associated with the opening of four new restaurants during that period.
Depreciation and amortization. Depreciation and amortization increased
$488,000 to $4.0 million in the first six months of fiscal year 2000, or 13.7%,
from $3.6 million in the first six months of fiscal year 1999. The increase is
primarily due to the opening and operating of 12 new restaurants since the end
of the fiscal year 1999 second quarter, the operations of Kendall and three new
restaurants that were only open and operating part of the first six months of
fiscal year 1999. As a percentage of sales, depreciation and amortization
decreased by 0.2 percentage points from 6.2% for the first six months of fiscal
year 1999 to 6.0% for the first six months of fiscal year 2000.
-11-
<PAGE> 13
General and administrative. General and administrative costs increased
$785,000 to $4.1 million for the first six months of fiscal year 2000, or 23.6%,
from $3.3 million for the first six months of fiscal year 1999. As a percentage
of sales, general and administrative costs increased 0.3 percentage points from
5.8% for the first six months of fiscal year 1999 to 6.1% for the first six
months of fiscal year 2000. The increase is primarily the result of the
Company's substantial recruiting efforts. The Company currently has
approximately 40 managers in various stages of training that will be ready for
the expected openings later this fiscal year. The Company plans to continue to
maintain a pool of managers that are trained according to the Roadhouse Grill
philosophy.
Interest expense. Interest expense increased $95,000 to $1.2 million in the
first six months of fiscal year 2000, or 8.8%, from $1.1 million in the first
six months of fiscal year 1999. The increase is primarily due to additional
interest expense on additional debt incurred due to the development and opening
of 12 new restaurants during the first six months of fiscal year 2000.
Income taxes. The Company has a valuation allowance that offsets a portion
of its net deferred tax assets. Each quarter management determines, based on
projections, the realizability of the related deferred tax assets in future
years and has reduced the allowance to the extent year-to-date income is
available to realize the benefit of the deferred tax assets. The reduction of
the valuation allowance currently minimizes income tax expense.
Income tax expense of $276,000 and $84,000 in the first six months of
fiscal year 2000 and the first six months of fiscal year 1999, respectively,
represents state income tax and alternative minimum tax.
Adoption of New Accounting Standards
In April 1998, the AICPA Accounting Standards Executive Committee issued
Statement of Position 98-5, "Reporting on the Costs of Start-Up Activities".
SOP 98-5 defines start-up activities broadly (including organizational costs)
and requires that the cost of start-up activities be expensed as incurred. SOP
98-5 amends provisions of a number of existing SOP's and audit and accounting
guides. SOP 98-5 is effective for fiscal years beginning after December 15,
1998. In previous years, the Company's accounting policy was to capitalize
pre-opening costs and amortize them over a one-year period. The Company adopted
SOP 98-5 during the first quarter of fiscal year 2000. The effect of initially
applying the provisions of SOP 98-5 is reported as a change in accounting
principle at the beginning of the first quarter of fiscal year 2000. Thereafter,
all such costs are expensed as incurred and are included in "pre-opening
expenses" within the accompanying statements of operations.
Liquidity and Capital Resources
The Company requires capital principally for the opening of new restaurants
and has financed its requirements through the private placement of common stock,
an Initial Public Offering, bank loans, leasing facilities and loans from
certain private parties, including present and former shareholders of the
Company.
As of October 24, 1999, the Company had available to it approximately $5.0
million in sale-leaseback credit facilities from CNL Fund Advisors, Inc.
("CNL"). These sale-leaseback credit facilities are available for development by
the Company of new Roadhouse Grill restaurants. The credit facility with CNL
expires in January 2000. The Company is currently in negotiations with Franchise
Finance Corporation of America ("FFCA") to secure a new sale-leaseback credit
facility with them, as well as other lenders. The Company has an existing
relationship with FFCA. While the Company anticipates securing additional
sale-leaseback credit facilities with both FFCA and CNL upon expiration of the
current agreements, there is no assurance that the Company can, in fact, secure
any credit facilities with FFCA, CNL or any other lending institution. If the
Company fails to obtain additional capital through some type of financing, its
expansion plans for fiscal year 2000 and beyond would be greatly reduced.
During the fiscal year 2000 second quarter, the Company borrowed $1.0
million from First Union National Bank. This 120-day promissory note has an
interest rate of the one-month LIBOR rate plus 1.75%. The proceeds were
utilized for the purchase of land for one new restaurant currently under
construction.
Subsequent to the end of fiscal year 2000 second quarter, the Company
secured from FINOVA Capital Corporation a two-year $5.0 million working capital
line of credit. The credit facility will be utilized solely for the interim
construction of new restaurants.
The Company's capital expenditures aggregated approximately $15.2 million
for the twenty-six weeks ended October 24, 1999 and $2.9 million for the
twenty-six weeks ended October 25, 1998, substantially all of which were used to
open Roadhouse Grill restaurants.
-12-
<PAGE> 14
The Company anticipates that it may require additional debt or equity
financing in order to continue to open new restaurants. There can be no
guarantee or assurance financing will be available on terms acceptable to the
Company, if at all. In the event the Company is unable to secure additional
financing sufficient to support continued growth, the Company's operating and
financial plans would require revision.
As is common in the restaurant industry, the Company has generally operated
with negative working capital ($10.9 million at October 24, 1999). The Company
does not have significant receivables or inventory and receives trade credit on
its purchases of food and supplies.
Seasonality and Quarterly Results
The Company's sales and earnings fluctuate seasonally. On December 11,
1997, the Company's Board of Directors voted to change the Company's fiscal year
to coincide with that of the majority shareholder, Berjaya Cayman. With the new
fifty-two or fifty-three week fiscal year structure, the Company's highest
earnings are expected to occur in the third and fourth fiscal quarters. The
current fiscal year ends on the last Sunday in April and consists of four
thirteen week quarters (except in the case of a fifty-three week year in which
the fourth quarter consists of fourteen weeks) structured as follows:
o 1st Quarter - May, June, July
o 2nd Quarter - August, September, October
o 3rd Quarter - November, December, January
o 4th Quarter - February, March, April
Quarterly results have been, and in the future are likely to be,
substantially affected by the timing of new restaurant openings. Because of the
seasonality of the Company's business and the impact of new restaurant openings,
results for any quarter are not necessarily indicative of the results that may
be achieved for a full fiscal year.
Year 2000
Many software applications and operational programs previously written were
not designed to recognize calendar dates beginning in the Year 2000. The failure
of such applications or programs to properly recognize the dates beginning in
the Year 2000 may result in miscalculations or system failures. This could have
an adverse effect on the Company's operations, if not corrected.
The Company has appointed a Year 2000 committee which has initiated a
comprehensive project to prepare its information technology systems as well as
non-information technology systems for the Year 2000. The project includes
identification and assessment of software, hardware and equipment that could
potentially be affected by the Year 2000 issue, remedial action and further
testing procedures. The Company believes that the majority of its information
technology systems and non-information technology systems are substantially Year
2000 compliant at this time. The Company's current estimate of the total cost of
its Year 2000 project was approximately $150,000. The Company's aggregate cost
estimate does not include time and costs that may be incurred by the Company as
a result of any third parties, including suppliers, to become Year 2000
compliant or costs to implement any contingency plans.
Substantially all significant third party vendors, including but not
limited to, restaurant food and supply vendors, banking institutions, credit
card processors and information systems providers such as outside payroll
services have represented to the Company that they are or will be Year 2000
compliant prior to January 1, 2000. The Company has developed a contingency plan
for any vendors that appear to have substantial Year 2000 operational risks.
Such contingency plans may include a change in vendors to minimize the Company's
risks. The effect, if any, on the Company's results of operations from failure
of third parties to be Year 2000 compliant cannot be reasonably estimated.
The Company believes that it will be substantially Year 2000 compliant by
the end of the year. However, due to the unique nature of the issue and the lack
of historical experience, it is difficult to predict with certainty what will
happen after December 31, 1999. The Company may encounter unanticipated third
party failures or that its systems remediation efforts were not successful. Any
of these unforeseen events may have a material adverse impact on the Company's
results of operations, financial condition or cash flows. Potential sources of
risk include the inability of principal suppliers to be Year 2000 compliant,
which could result in delays in product deliveries from suppliers, and
disruption of the distribution channels, including transportation vendors. The
amount of any potential losses related to these occurrences cannot be reasonably
estimated at this time. The Company has developed a contingency plan which is
intended to mitigate the effects of problems experienced by the Company or key
vendors or service providers in the timely implementation of Year 2000 programs.
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<PAGE> 15
The most likely worst case scenario for the Company is that a significant
number of Roadhouse Grill restaurants will be temporarily unable to operate due
to public infrastructure failures and/or food supply problems. Some restaurants
may have problems for extended periods of time. The failure of restaurants to
operate would result in reduced revenues and cash flows for the Company during
the disruption period. Loss of restaurant sales would, however, be partially
offset by reduced costs.
Impact of Inflation
The Company does not believe that inflation has materially affected its
results of operations during the past five fiscal years. Substantial increases
in costs and expenses, particularly food, supplies, labor and operating expenses
could have a significant impact on the Company's operating results to the extent
that such increases cannot be passed along to customers.
Employees
The Company competes with other companies for qualified personnel,
especially management. A shortage of qualified personnel could materially affect
the Company. The Company has not experienced a shortage of qualified personnel
to date and believes that the risk of a shortage is minimal.
Site Location
The Company competes in the marketplace for qualified restaurant locations.
There is no assurance that the Company can find enough qualified sites to
continue its expansion plans.
Consumer Taste
The restaurant industry is highly competitive and subject to changes in
consumer tastes. The Company believes that it has the ability to respond quickly
to changing taste and preferences because of its flexible format and trade name.
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<PAGE> 16
PART II
Item 1. Legal Proceedings
The Company is involved in various legal actions arising in the normal
course of business. While the resolution of any of such actions may have an
impact on the financial results for the period in which it is resolved, the
Company believes that the ultimate disposition of these matters will not, in the
aggregate, have a material adverse effect upon its business or financial
position.
Item 6. Exhibits and Reports on Form 8-K
(a) The Exhibits listed on the accompanying Exhibit Index are filed with or
incorporated by reference in this report.
(b) The Company filed no reports on Form 8-K during the period covered by
this Form 10-Q.
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<PAGE> 17
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf on December 8, 1999, by the undersigned, thereunto duly authorized.
ROADHOUSE GRILL, INC.
(Registrant)
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Ayman Sabi President, Chief Executive Officer December 8, 1999
----------------------------------- and Director
Ayman Sabi (Principal Executive Officer)
/s/ Glenn E. Glasshagel Chief Financial Officer December 8, 1999
- ------------------------------------- (Principal Financial Officer
Glenn E. Glasshagel and Principal
Accounting Officer)
</TABLE>
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<PAGE> 18
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -----------
21.0 Subsidiaries of the Registrant.
10.57 Revolving Loan Agreement with FINOVA Capital Corporation.
10.58 Promissory Note with First Union National Bank.
27 Financial Data Schedule.
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<PAGE> 1
Exhibit 21.0 Subsidiaries of the Registrant
Roadhouse Grill-Commercial, Inc.
Roadhouse Grill of North Miami, Inc.
Roadhouse Grill of South Carolina, Inc.
Roadhouse Grill of Georgia, Inc.
Roadhouse Grill of New York, Inc.
Roadhouse Grill Property, L.C.
<PAGE> 1
Exhibit 10.57
REVOLVING LOAN AGREEMENT
Dated as of October 28, 1999
by and between
ROADHOUSE GRILL, INC.,
a Florida corporation,
as Borrower,
and
FINOVA CAPITAL CORPORATION
as Lender
<PAGE> 2
REVOLVING LOAN AGREEMENT
AGREEMENT, dated as of ____________, _____, by and between ROADHOUSE
GRILL, INC., a Florida corporation, having a place of business at 6600 N.
Andrews Avenue, Suite 160, Ft. Lauderdale, FL 33309; and FINOVA CAPITAL
CORPORATION, a Delaware corporation ("LENDER"), having a place of business at
115 West Century Road, Paramus, New Jersey 07652.
W I T N E S S E T H :
WHEREAS, Borrower has requested Lender to make available to Borrower a
revolving loan facility and Lender is willing to make such revolving loan
facility available to Borrower upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto covenant and agree as follows:
ARTICLE 1. DEFINITIONS; CONSTRUCTION
1.1 CERTAIN DEFINITIONS.
In addition to other words and terms defined elsewhere in this
Agreement, as used herein the following words and terms have the following
meanings, respectively, unless the context hereof otherwise clearly requires:
"ADVANCE" means any advance made hereunder by Lender to Borrower.
"AGREEMENT" means this Revolving Loan Agreement as amended, modified or
supplemented from time to time.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which banking institutions are authorized or obligated to close in New Jersey
or Arizona.
"CLOSING DATE" means the date on which the parties enter into this
Agreement and all conditions to the making of the Initial Advance contained in
this Agreement and the other Loan Documents have been satisfied in Lender's sole
and absolute discretion.
<PAGE> 3
"CONSTITUENT DOCUMENTS" means the certificate of incorporation,
agreement of partnership or limited partnership, organizational agreement,
operating agreement, by-laws, or such other similar document pursuant to which
Borrower was organized or their affairs are governed.
"DEFAULT" means an event which with notice or lapse of time, or both,
would constitute an Event of Default.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" means any of the Events of Default described in
Section 7.1 hereof.
"EXECUTIVE OFFICER" means the President, the Chief Executive Officer,
or the Chief Financial Officer of Borrower elected from time to time.
"GAAP" means generally accepted accounting principles in the United
States of America (as such principles may change from time to time) applied on a
consistent basis (except for changes in application in which Borrower's
independent certified public accountants concur), applied both to classification
of items and amounts.
"INTEREST RATE" means the rate of interest publicly announced by Chase
Manhattan Bank N.A. ("Chase") in New York, New York, from time to time as its
Prime Rate plus two percent (2%) per annum. The Prime Rate is not intended to be
the lowest rate of interest charged by Chase to its borrowers.
"LAW" means any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any government or governmental agency.
"LEGAL REQUIREMENTS" means any and all present and future judicial, and
administrative rulings or decisions, and any and all present and future federal,
state, and local laws, ordinances, rules, regulations, permits and certificates,
in each case, in any way applicable to Borrower (or the ownership or use of its
assets), or this transaction.
-2-
<PAGE> 4
"LIEN" means any mortgage, pledge, lien, security interest (including
without limitation any conditional sale or other title retention agreement),
grant of a leasehold, charge or other encumbrance of any nature whatsoever, and
also means the filing of or the agreement to give any financing statement or
analogous document under the UCC or analogous law of any jurisdiction.
"LOAN" means, as of any date of determination, the aggregate amount of
all Advances theretofore made hereunder.
"LOAN DOCUMENTS" means this Agreement, the Requests for Advance, the
Note, and any other agreements, instruments and documents required to be, or
which are, executed by Borrower in connection with this Agreement or the Loan
(as the same may from time to time be amended, modified or supplemented).
"MATURITY DATE" means the earlier of December 30, 2001 or the date on
which the maturity of the Loan is accelerated pursuant to Section 7.2.
"MAXIMUM LOAN" means the maximum aggregate amount to be loaned
hereunder not to exceed Five Million Dollars ($5,000,000.00).
"NOTE" means the promissory note of Borrower executed and delivered
under this Agreement, in substantially the form annexed hereto as Exhibit A with
the blanks appropriately filled in.
"OBLIGATIONS" means all of the indebtedness, liabilities and
obligations of every kind and nature of Borrower to Lender, whether now existing
or hereafter arising, whether or not currently contemplated, howsoever arising,
including, without limitation, all indebtedness, liabilities and obligations
arising under, in connection with or evidenced by this Agreement, the Note, the
other Loan Documents, or otherwise.
"OFFICE", when used in connection with Lender, means its office located
at 115 West Century Road, Paramus, New Jersey 07652, or such other office of
Lender as may be designated in writing from time to time by Lender to Borrower.
"PERSON" means an individual, corporation, national banking
association, partnership, limited liability company, trust, unincorporated
association, joint venture, joint-stock company, government (including political
subdivisions), governmental authority or agency, Native American tribe, or any
other entity.
"PLAN" means any employee benefit plan which is covered by ERISA and
which is maintained by Borrower or, in the case of a plan to which more than one
employer contributes, to which Borrower made contributions at any time within
the five plan years preceding the date of termination.
"REQUEST FOR ADVANCE" means a Request for Advance in the form of
Exhibit B annexed hereto.
-3-
<PAGE> 5
"TERM" means the period beginning on the Closing Date and ending on the
Maturity Date.
"UCC" means the Uniform Commercial Code as adopted in the State of New
Jersey.
"VOTING STOCK" of the Borrower means capital stock of the Borrower, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors of the Borrower, even though the right so to
vote has been suspended by the happening of such a contingency
1.2 GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly provided
herein or unless the context otherwise requires:
(i) any pronoun used shall be deemed to cover both
gender forms as well as the neuter form;
(ii) all references to the plural shall include the
singular, the singular the plural and the part the whole;
(iii) the word "or" has the inclusive meaning
frequently identified by the phrase "and/or";
(iv) accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP;
(v) the words "herein", "hereunder" and "hereof" and
similar terms in this Agreement refer to this Agreement as a whole and not to
any particular provision of this Agreement;
(vi) references herein to "Articles", "Sections",
"Subsections", "Paragraphs", and other subdivisions without reference to a
document are to designated Articles, Sections, Subsections, Paragraphs and other
subdivisions of this Agreement;
(vii) a reference to a Subsection without further
reference to a Section is a reference to such Subsection as contained in the
same Section in which the reference appears, and this rule shall also apply to
Paragraphs and other subdivisions;
(viii) the term "include" or "including" shall mean,
without limitation, by reason of enumeration; and
-4-
<PAGE> 6
(ix) the term "satisfactory to Lender" or
"satisfaction of the Lender" or "satisfaction to counsel" or other similar terms
means satisfactory to Lender or its counsel in its sole and absolute discretion.
ARTICLE 2. THE CREDIT
2.1 THE LOAN.
Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, Lender agrees to make a Loan to
Borrower in a principal amount of up to the Maximum Loan.
2.2 USE OF PROCEEDS.
The proceeds of the Advances shall be used by Borrower for the
acquisition and construction of New Roadhouse Grill restaurants and working
capital purposes of Borrower.
2.3 THE NOTE.
The obligation of Borrower to repay the Loan and to pay interest
thereon shall be evidenced by the Note. The Note shall be dated the Closing Date
and shall be executed by Borrower and delivered to Lender on the Closing Date.
2.4 ADVANCES.
Lender agrees, on the terms and subject to the conditions set forth
herein, to make Advances to Borrower from time to time during the Term so long
as the total Advances outstanding hereunder do not exceed the Maximum Loan and
no Default or Event of Default has occurred; and Borrower agrees, on the terms
and subject to the conditions set forth herein, to accept such Advances from
Lender and apply them in accordance with the terms of this Agreement. Advances
may be prepaid and redrawn as new Advances subject to and in accordance with the
terms of this Agreement.
-5-
<PAGE> 7
2.5 REQUESTS FOR ADVANCES.
Borrower shall, not later than the fifth Business Day next preceding
the date of any requested Advance, submit to Lender a Request for Advance,
setting forth (a) the date requested for such Advance, which date shall be a
Business Day, (b) the amount of the requested Advance, which amount shall not be
less than One Hundred Thousand Dollars ($100,000.00), (c) a description of the
items and costs to be paid with the Advance and (d) the address of the new
Roadhouse Grill restaurant for which the items and costs were incurred. The
submission of each Request for Advance shall constitute Borrower's irrevocable
commitment to borrow such amount. The date each Advance is made is the
"Disbursement Date". In addition, as a precondition to making any Advance
hereunder, Lender may, in its sole and absolute discretion, require that each
Request for Advance indicate the payee(s) to be paid with the proceeds of such
Advance and be accompanied by such requisitions, certificates, releases and
waivers of liens, approvals and supporting invoices, copies of agreements with
the suppliers to be paid, bills or other documents, in each case, in form and
substance and from such Person or Persons as are reasonably satisfactory to
Lender. Lender is not required to make more than two Advances per calendar
month.
2.6 DISBURSEMENTS.
Subject to the conditions set forth herein, Lender shall, on each
Disbursement Date, credit, by wire transfer, the amount of the Advance to be
made to the account of Borrower.
2.7 LOAN ACCOUNT.
Lender shall maintain a loan account on its books in the name of
Borrower for the Loan in which will be recorded all Advances made by Lender, all
payments of principal thereof and all accruals and payments of interest thereon.
Lender shall provide Borrower with monthly statements of said account. Unless
Borrower objects within ten (10) days of its receipt of a statement, the entries
in the loan account and contained in the statement (in the absence of manifest
error in the making thereof) shall be conclusive evidence of the outstanding
principal and accrued interest from time to time.
2.8 INTEREST RATES.
2.8.1 INTEREST PRIOR TO MATURITY. During the Term Advances
shall bear interest at the Interest Rate.
2.8.2 INTEREST AFTER MATURITY. Commencing with the day after
the principal amount of the Loan shall have become due and payable (by
acceleration or otherwise), such part of the Loan or the entire Loan (as the
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case may be) shall bear interest at the daily rate of four (4%) percent per
annum above the Interest Rate (the "Default Rate").
2.8.3 MAXIMUM RATE. Lender and Borrower intend the Loan
Documents to comply in all respects with all provisions of Law and not to
violate, in any way, any legal limitations on interest charges. Accordingly, if,
for any reason, Borrower is required to pay, or has paid, interest at a rate in
excess of the highest rate of interest which may be charged by Lender or which
Borrower may legally contract to pay under applicable law (the "Maximum Rate"),
then the Interest Rate or the Default Rate (as the case may be) shall be deemed
to be reduced, automatically and immediately, to the Maximum Rate, and interest
payable hereunder shall be computed and paid at the Maximum Rate and the portion
of all prior payments of interest in excess of the Maximum Rate shall be deemed
to have been prepayments of the outstanding principal of the Loan.
2.9 PAYMENTS.
2.9.1 TIME; PLACE; MANNER. All payments to be made in respect
of principal, interest, or other amounts due from Borrower hereunder or under
the Note shall become due at 12:00 o'clock noon, New Jersey time, on the day
when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived. Such payments shall be made to Lender in
lawful money of the United States of America in immediately available funds.
2.9.2 PAYMENTS OF PRINCIPAL AND INTEREST. Borrower shall pay
interest only on the Advances, at the Interest Rate, in arrears, on the first
day of each month. The entire unpaid principal balance of the Loan together with
any unpaid interest, fees, costs and charges shall be due and payable on the
Maturity Date. After the maturity of the Loan (by acceleration or otherwise),
interest on the Loan thereof shall be due and payable at the Default Rate on
demand.
2.9.3 NET PAYMENTS. All payments hereunder and under the Note
shall be made by Borrower to Lender without defense, set-off, claim or
counterclaim and without deduction for any present or future income, stamp or
other taxes, levies, imposts, deductions, charges or withholdings whatsoever
imposed, assessed, levied or collected by or for the benefit of any jurisdiction
or taxing authority. In addition, Borrower shall pay any and all taxes (stamp or
otherwise) payable or determined to be payable in connection with the execution
and delivery of this Agreement, the Note, and the other Loan Documents and on
all payments to be made by Borrower hereunder and under the Note and the other
Loan Documents (other than the Lender's income taxes).
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2.10 PREPAYMENTS.
(a) Borrower shall have the right to voluntarily prepay any
outstanding Advance, in whole or in part on twenty (20) Business Days' notice.
Such notice shall be irrevocable and the amount specified in such notice shall
be due on the date specified in such notice.
(b) Borrower agrees that it shall not prepay any Obligation to
Lender which does not arise under the Agreement or the Note until the Loan has
been repaid in full and this Agreement has been terminated.
(c) Once during each of (i) the period beginning with the
Closing Date and ending with the first anniversary thereof and (ii) the period
beginning with the first anniversary of the Closing Date and ending with the
Maturity Date, Borrower shall prepay the Advances to zero outstanding and
refrain from borrowing Advances during the 30-day period immediately following
the date of such prepayment.
(d) Borrower shall be obligated to prepay the Loan in full and
Lender may terminate its commitment if any Person other than Berjaya Group
Behad, a Malaysian corporation, owns at least fifty one percent (51%) of the
Voting Stock of Borrower.
2.11 ADMINISTRATIVE COSTS.
If Borrower shall fail to make any payment of principal or interest
within ten (10) days after the same is due, Borrower shall pay a late charge of
five percent (5%) of the unpaid installment of principal and/or interest, but in
no event greater than the maximum rate permitted by law, and such amount shall
be payable upon demand. Such payment is not interest for the use of money, but
is solely to cover Lender's administrative costs occasioned by such delay.
2.12 FEES.
2.12.1 POINTS AT CLOSING. The Borrower shall pay to the Lender
an origination fee of $100,000. One half of such fee shall be payable on the
date of signing of this Agreement. The second half of such fee shall be payable
on the first anniversary of the Closing Date. The origination fee shall be due
and payable and fully earned and non refundable whether or not any Advance is
made hereunder.
2.12.2 NON-UTILIZATION FEE. On the date which is no later than
thirty days after each anniversary of the Closing Date, or if earlier, on the
Maturity Date, the Borrower shall pay to the Lender a non-utilization fee equal
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to 0.50% times the difference between the Maximum Loan and the average daily
outstanding principal amount of the Loan during the prior year.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Lender that:
3.1 ORGANIZATION AND QUALIFICATION.
Borrower is duly organized, validly existing and in good standing as a
corporation under the Laws of the State of Florida with full power and authority
to own its properties and to transact its business as now transacted and as
contemplated to be transacted. Borrower is qualified and in good standing to
transact business in each jurisdiction where the ownership of its properties or
the transaction of its business requires such qualification.
3.2 AUTHORITY AND AUTHORIZATION.
Borrower has full power and authority to execute, deliver and carry out
the provisions of this Agreement, the Note and the other Loan Documents to which
it is a party, to borrow hereunder and under the other Loan Documents and to
create any Liens provided for herein or therein, and to perform its obligations
hereunder and thereunder, and all such action has been duly and validly
authorized by all necessary proceedings on its part.
3.3 EXECUTION AND BINDING EFFECT.
This Agreement, the Note and the other Loan Documents executed by
Borrower have been duly and validly executed and delivered by Borrower and
constitute the legal, valid and binding obligation of Borrower enforceable in
accordance with their respective terms.
3.4 AUTHORIZATIONS AND FILINGS.
No authorization, consent, approval, license, exemption or other action
by, and no registration, qualification, designation, declaration or filing with,
any governmental authority is or will be necessary or advisable in connection
with the execution and delivery of this Agreement, the Note, the other Loan
Documents or the consummation by Borrower of the transactions herein and therein
contemplated, or performance by Borrower of or compliance by Borrower with, the
terms and conditions hereof or thereof.
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3.5 ABSENCE OF CONFLICTS.
Neither the execution and delivery of this Agreement, the Note or the
other Loan Documents, nor consummation of the transactions herein or therein
contemplated nor performance of, or compliance with the terms and conditions
hereof or thereof will (a) result in any violation of the provisions of
Borrower's Constituent Documents or any Law, or the order, rule or regulation of
any court or governmental agency or body having jurisdiction over Borrower or
any of their respective properties, or (b) result in the creation or imposition
of any Lien upon any property (now owned or hereafter acquired) of Borrower
except for the Lien created by this Agreement.
3.6 FINANCIAL STATEMENTS.
Borrower has heretofore furnished to Lender certain financial
statements and related financial information ("Financial Statements"). Such
Financial Statements (including the notes thereto) present fairly the financial
condition of Borrower (as the case may be) as of the dates of the balance sheets
contained therein, and the results of its operations for the periods then ended,
all in conformity with GAAP on a basis consistent with that of Financial
Statements for corresponding prior periods. Except as disclosed therein,
Borrower has no material contingent liabilities (including liabilities for
taxes), unusual forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments.
3.7 NO DEFAULTS.
There is no Default under the Loan Documents.
3.8 LITIGATION.
There is no pending or threatened claim or proceeding by or before any
court or governmental agency against or affecting Borrower which, if adversely
decided would have a material adverse effect on the business, operations or
financial condition of Borrower or on the ability of Borrower to perform their
respective obligations under this Agreement, the Note or the other Loan
Documents.
3.9 TITLE TO PROPERTY.
Borrower has good title to all property owned by it, including all
properties reflected in the most recent balance sheet referred to in Section 3.6
hereof (except as sold or otherwise disposed of in the ordinary course of
business).
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3.10 TAXES.
All tax returns required to be filed by Borrower have been properly
prepared, executed and filed. All taxes, assessments, fees and other
governmental charges upon Borrower or upon any of its properties, incomes, sales
or franchises which are due and payable have been paid.
3.11 FINANCIAL ACCOUNTING PRACTICES.
Borrower makes and keeps books, records and accounts which, in
reasonable detail, accurately and fairly reflect Borrower's transactions and
dispositions of its assets.
3.12 POWER TO CARRY ON BUSINESS.
Borrower has all requisite power and authority to own and operate its
properties and to carry on its businesses as now conducted and as presently
planned to be conducted.
3.13 NO MATERIAL ADVERSE CHANGE.
Since the date of the Financial Statements referred to in Section 3.6,
there has been no material adverse change in the business, operations or
financial condition of Borrower.
3.14 COMPLIANCE WITH LAWS.
Borrower is not in violation of any Law, except for violations which in
the aggregate do not have a material adverse effect on the business, operations
or financial condition of Borrower.
3.15 COMPLIANCE WITH AGREEMENTS.
Borrower is not in default under any agreement, bond, note, indenture
or contract, except for defaults which in the aggregate do not have a material
adverse effect on the business, operation or financial condition of Borrower.
3.16 ACCURATE AND COMPLETE DISCLOSURE.
No representation or warranty made by Borrower in this Agreement and no
statement made by Borrower in the Financial Statements furnished pursuant to
Section 3.6 hereof or otherwise, or any certificate, report, exhibit or document
furnished by Borrower to Lender pursuant to or in connection with this Agreement
or the Loan is false or misleading in any material respect (including by
omission of material information necessary to make such representation, warranty
or statement not misleading).
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3.17 REGULATION U.
Borrower is not engaged in the business of extending credit for the
purpose of purchasing or carrying "margin stock", as such term is used in
Regulations U promulgated by the Board of Governors of the Federal Reserve
System as amended from time to time. No part of the proceeds of the Loan will be
used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any "margin stock". Borrower does not own any
"margin stock".
3.18 YEAR 2000. Borrower has taken all action necessary to assure that
there will be no material adverse change to Borrower's business by reason of the
advent of the year 2000, including, without limitation, that all computer-based
systems, embedded microchips and other processing capabilities effectively
recognize and process dates after April 1, 1999.
ARTICLE 4. CONDITIONS OF LENDING
The obligation of Lender to make the Loan and each Advance hereunder is
subject to the accuracy in all material respects, as of the date hereof and each
Disbursement Date, of the representations and warranties herein contained, to
the performance by Borrower of its obligations to be performed hereunder on or
before such Disbursement Date and to the satisfaction of the following further
conditions.
4.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties contained in Article 3 hereof shall
be true on the Closing Date and on and as of each Disbursement Date with the
same effect as if made on and as of such date, and on such dates no Default or
Event of Default shall have occurred and be continuing or exist or shall occur
or exist after giving effect to the Loan or any Advance.
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4.2 CORPORATE ACTION.
On the Closing Date, Borrower shall deliver to Lender a certificate in
form and substance satisfactory to Lender, dated the Closing Date, signed by a
duly authorized officer of Borrower, certifying as to (a) true copies of the
Constituent Documents of Borrower, all as in effect on such date, (b) true
copies of all action taken by Borrower relative to this Agreement, the Note and
the other Loan Documents, and (c) the names, true signatures and incumbency of
the officer or officers of Borrower authorized to execute and deliver this
Agreement, the Note and the other Loan Documents on behalf of Borrower (and
Lender may conclusively rely on such certificate unless and until a later
certificate revising the prior certificate has been furnished to Lender).
Borrower shall also deliver to Lender a good standing certificate for Borrower
issued by the Secretary of State of the State of incorporation of the Borrower.
4.3 OPINION OF COUNSEL.
On the Closing Date, Lender shall have received a favorable written
opinion of counsel for Borrower, dated the Closing Date and in form and
substance satisfactory to Lender and its counsel, Winick & Rich, P.C.
4.4 NO CHANGE OF LAW OR FACTS.
No change shall have occurred after the date of execution and delivery
of this Agreement in applicable Law or regulations thereunder or interpretations
thereof by appropriate regulatory authorities which, in the opinion of Lender or
its counsel, would make it illegal for Lender to acquire the Note, make an
Advance, or otherwise to participate in the Loan, nor shall any facts come to
the attention of Lender, concerning Borrower, its business or financial
condition which, in the opinion of Lender would increase the risk to Lender of
repayment of the Loan by Borrower.
4.5 DOCUMENTS.
The following documents shall have been duly authorized, executed and
delivered by the respective party or parties thereto, shall be in form and
substance satisfactory to Lender and its counsel and shall be in full force and
effect on the Closing Date and on each Disbursement Date, and an executed
counterpart of each thereof shall have been delivered to Lender and its counsel:
4.5.1 this Agreement;
4.5.2 the Note;
4.5.3 a Request for Advance completed in accordance herewith;
and
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4.5.4 the other Loan Documents, if any.
4.6 There shall be no Default hereunder or under the other Loan
Documents.
ARTICLE 5. COVENANTS
Borrower covenants that from and after the date hereof and until
payment in full of the Note and interest thereon and all other amounts due from
Borrower hereunder or under the Note or the other Loan Documents, unless Lender
shall otherwise consent in writing:
5.1 REPORTING AND INFORMATION REQUIREMENTS.
5.1.1 ANNUAL FINANCIAL STATEMENTS. As soon as practicable, and
in any event within one hundred twenty (120) days after the close of each fiscal
year of Borrower, Borrower shall furnish to Lender the annual audit report for
such year, including audited statements of income, retained earnings and changes
in financial position of Borrower for such fiscal year and an audited balance
sheet of Borrower as of the close of such fiscal year, and notes to each, all in
reasonable detail, setting forth in comparative form the corresponding figures
for the preceding fiscal year where such presentation is appropriate under GAAP,
certified without qualification by independent certified public accountants of
recognized standing selected by Borrower and satisfactory to Lender, together
with (or included in such certification) a written statement of such accountants
substantially to the effect that (i) such accountants examined such financial
statements in accordance with generally accepted auditing standards and
accordingly made such tests of accounting records and such other auditing
procedures as they considered necessary in the circumstances and (ii) in the
opinion of such accountants such financial statements present fairly the
financial position of Borrower as of the end of such fiscal year and the results
of its operations and the changes in its financial position for the fiscal year
then ended, in conformity with GAAP applied on a basis consistent with that of
the preceding fiscal year (except for changes in application in which such
accountants concur).
5.1.2 QUARTERLY FINANCIAL STATEMENTS. Within forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year, Borrower shall furnish to Lender a copy of its Form 10Q Report filed with
the Securities and Exchange Commission with respect to such quarter.
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5.1.3 FURTHER REQUESTS. Borrower will promptly furnish to
Lender such other information (financial or otherwise) concerning Borrower or
its assets in such form as Lender may reasonably request.
5.1.4 NOTICE OF EVENT OF DEFAULT. Promptly upon becoming aware
of any Default or Event of Default, Borrower shall give Lender notice thereof,
together with a written statement of the Chief Executive Officer or Chief
Financial Officer of Borrower setting forth the details thereof and any action
with respect thereto taken or contemplated to be taken by Borrower.
5.1.5 NOTICE OF MATERIAL ADVERSE CHANGE. Promptly upon
becoming aware thereof Borrower shall give Lender written notice about any
material adverse change in the business, operations or financial condition of
Borrower or on the ability of Borrower to perform their obligations under this
Agreement, the Note or the other Loan Documents.
5.1.6 NOTICE OF MATERIAL PROCEEDINGS. Promptly upon becoming
aware thereof Borrower shall give Lender written notice of the commencement,
existence or threat of any proceeding by or before any court or administrative
agency against or affecting Borrower, which, if adversely decided, would have a
material adverse effect on the business, operations or financial condition of
Borrower or on the ability of Borrower to perform its obligations under this
Agreement, the Note or the other Loan Documents.
5.1.7 VISITATION. Borrower shall permit such persons as Lender
may designate to examine the books and records of Borrower and take copies and
extracts therefrom, and to discuss its affairs with officers of Borrower and its
independent accountants, at such reasonable times and as often as Lender may
reasonably request.
5.1.8 COMPLIANCE CERTIFICATES. At the same time Borrower
delivers the financial statements required under the provisions of Sections
5.1.1. and 5.1.2, Borrower shall furnish to Lender a certificate of the Chief
Executive Officer of the Borrower to the effect that no Default or Event of
Default exists, or, if such cannot be so certified, specifying in reasonable
detail the exceptions, if any, to such statement. Such certificate shall be
accompanied by a detailed calculation indicating compliance with Article 6
hereof in the form of Exhibit C.
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5.2 PRESERVATION OF EXISTENCE AND FRANCHISES.
5.2.1 Borrower shall not enter into any merger, reorganization
or consolidation, or wind up, liquidate or dissolve, nor agree to do any of the
foregoing.
5.2.2 Borrower will qualify to do business and will remain in
good standing under the laws of each jurisdiction in which it is required to be
qualified by reason of the location of the properties owned or leased by it or
the conduct of its business.
5.2.3 Borrower will comply with all Laws relative to the
conduct of its business or the location of the properties owned or leased by it,
the non-compliance with which could have a material adverse effect on the
business, operations, assets or financial or other condition of the Borrower, as
contemplated hereby, or the ability of Borrower to perform its obligations under
this Agreement, the Note, or the other Loan Documents and will obtain or cause
to be obtained as promptly as possible any permit, license, consent, privilege
or approval of any governmental authority and make any filing or registration
therewith which at the time shall be required with respect to the performance of
its obligations under this Agreement, the Note or the other Loan Documents or
for the operation of its business as presently conducted or as contemplated by
it.
5.3 INSURANCE.
Borrower shall, at its own expense, maintain and deliver evidence to
Lender of such insurance required by Lender, written by insurers and in amounts
satisfactory to Lender.
5.4 MAINTENANCE OF PROPERTIES.
Borrower shall maintain or cause to be maintained in good repair,
working order and condition the properties now or hereafter owned, leased or
otherwise possessed by it, and shall make or cause to be made all needful and
proper repairs, renewals, replacements and improvements thereto so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
5.5 PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES.
Borrower shall pay or discharge
5.5.1 all taxes, assessments and other governmental charges or
levies imposed upon it or any of its properties, or income (including such as
may arise under ERISA or any similar provision of law), on or prior to the date
on which penalties attach thereto,
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5.5.2 all lawful claims of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons which, if unpaid, might result in
the creation of a Lien upon any such property, on or prior to the date when due;
PROVIDED, that unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, Borrower need not pay or discharge any
such tax, assessment, charge, levy, claim or current liability so long as (i)
the validity thereof is contested in good faith and by appropriate proceedings
diligently pursued and (ii) such reserves or other appropriate provisions as may
be required by GAAP shall have been made therefor, and so long as such failure
to pay or discharge does not have a material adverse effect on the business,
operations or financial condition of Borrower.
5.6 FINANCIAL ACCOUNTING PRACTICES.
Borrower shall make and keep books, records and accounts which, in
reasonable detail, accurately and fairly reflect its business, including all
transactions and dispositions of its assets, all prepared in accordance with
GAAP. Lender and/or its agents shall have the right to review the books and
records of Borrower and to photocopy the same and to make excerpts therefrom, at
all reasonable times and upon reasonable notice and as often as Lender may
reasonably request.
5.7 COMPLIANCE WITH LAWS.
Borrower shall comply with all applicable Laws in all respects,
PROVIDED, that Borrower shall not be deemed to be in violation of this Section
5.7 as a result of any failures to comply which would not result in fines,
penalties, injunctive relief or other civil or criminal liabilities which, in
the aggregate, would not materially affect the business or operations of
Borrower or the ability of Borrower to perform its obligations under this
Agreement, the Note or the other Loan Documents.
5.8 MATERIAL OBLIGATIONS. Borrower shall pay and satisfy, when due, all
material liabilities and obligations, including, without limitation, all
obligations under all leases (real or personal property) to which it is a party.
5.9 YEAR 2000.
Borrower shall take all action necessary to assure that there will be
no material adverse change to Borrower's business by reason of the advent of the
year 2000, including, without limitation, that all computer-based systems,
embedded microchips and other processing capabilities effectively recognize and
process dates after April 1, 1999. At Lender's request, Borrower shall provide
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to Lender assurance reasonably acceptable to Lender that Borrower's
computer-based systems, embedded microchips and other processing capabilities
are year 2000 compatible.
5.10 CROSS-COLLATERALIZATION.
Borrower acknowledges that all Obligations of Borrower to Lender,
whether arising under the Loan Documents or otherwise, shall be collateralized
by all collateral granted by Borrower to Lender, whether under the Loan
Documents or otherwise, so that all collateral granted to Lender hereunder and
thereunder shall secure all Obligations of Borrower to Lender however or
whenever created or arising.
5.11 GUARANTEES AND CONTINGENT LIABILITIES.
The Borrower shall not at any time directly or indirectly assume,
guarantee, endorse or otherwise agree, become or remain directly or indirectly
or contingently liable upon or with respect to any Obligations or liability of
any other Person.
5.12 DISPOSITION OF ASSETS.
The Borrower shall not sell, convey, assign, lease, abandon or
otherwise transfer or dispose of voluntarily or involuntarily, a material
portion of its tangible or intangible properties or assets except for fair value
or market value in the ordinary course of business.
5.13 LIENS.
The Borrower will not create or permit to exist a Lien or judgment for
any amount in excess of $25,000 in the aggregate which shall remain unpaid,
unstayed on appeal, undischarged, unbonded with unrelated third party, covered
by insurance or undismissed for a period of thirty (30) days or more.
ARTICLE 6. FINANCIAL COVENANTS
6.1 MINIMUM CASH FLOW COVERAGE RATIO.
Throughout the Term the Borrower shall maintain a Cash Flow Ratio of
not less than 1.75:1, tested on a quarterly basis for the trailing 12-month
period then ended.
Cash Flow Ratio means Cash Flow divided by Total Debt Service.
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Cash Flow means:
Net Income after income tax
Less: dividends and distributions
Plus: rent expense
Plus: depreciation
Plus: amortization
Plus: amortization of capitalized costs that relate to
preopening expenses.
Plus: Interest expense that is associated with all senior
debt and capitalized lease obligations ("Interest
Expense").
Total Debt Service means:
Rent Expense
Plus: Interest Expense
Plus: Current portion of senior debt
Plus: Current portion of capitalized lease obligations
6.2 MAXIMUM LEVERAGE RATIO.
During the Term the Leverage Ratio of the Borrower shall not exceed
3.1.
Leverage ratio means all of the Borrower's obligations ("TOTAL
LIABILITIES") divided by the Borrower's total shareholders' equity, less all
assets determined to be intangible in accordance with GAAP ("TANGIBLE NET
WORTH").
ARTICLE 7. DEFAULTS
7.1 EVENTS OF DEFAULT.
The occurrence of one or more of the following described events is an
Event of Default:
7.1.1 Borrower fails to make any payment of principal of or
interest on the Note, within five (5) days of the date such payment is due; or
7.1.2 Borrower fails to perform or observe any other covenant
or agreement to be performed or observed by it hereunder or under the other Loan
Documents and such failure continues unremedied for a period of thirty (30) days
after notice of such failure has been provided from Lender; or
7.1.3 Any representation or warranty made by Borrower herein
or in any other Loan Document or in any document or certificate furnished by
Borrower to Lender in connection herewith or therewith at any time proves to
have been incorrect in any material respect when made; or
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7.1.4 This Agreement or any Loan Document at any time for any
reason ceases to be in full force and effect or is declared by a court or
governmental agency of competent jurisdiction to be null and void; or
7.1.5 Borrower breaches or defaults under the terms of any
agreement, instrument or document with or for the benefit of Lender which is not
a Loan Document or under any other loan, credit facility or other financial
accommodation made by Lender to Borrower, including, without limitation, all
promissory notes, guarantees, equipment leases, security agreements, mortgages
and deeds of trust, in each case, after giving effect to the notice and cure
provisions contained in such documents; or
7.1.6 There is commenced against Borrower a criminal or civil
proceeding pursuant to which the proceedings, penalties or remedies sought or
available include forfeiture of a material portion of the assets of Borrower; or
7.1.7 There is a material adverse change in the financial
condition of Borrower; or
7.1.8 A proceeding is instituted seeking a decree or order for
relief in respect of Borrower in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect or for
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or other similar official) of Borrower, or for any substantial
part of its properties or for the dissolution, winding-up or liquidation of its
affairs or any substantial part of any of its properties and such proceeding
remains undismissed or unstayed for a period of sixty (60) consecutive days or
such court enters a decree or order granting the relief sought in such
proceeding; or
7.1.9 Borrower voluntarily suspends transaction of its
business, commences a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, consents to the entry of an
order for relief in an involuntary case under any such law or consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of Borrower for any
substantial part of any of its properties, or makes a general assignment for the
benefit of creditors, or takes any action in furtherance of any of the
foregoing; or
7.1.10 There shall be a judgment or judgments against Borrower
for any amount in excess of $100,000 in the aggregate, which shall remain
unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period
of thirty (30) days or more; or
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7.1.11 Borrower breaches or defaults under the terms of any
agreement, instrument or document with or for the benefit of any Person other
than Lender under any loan, credit facility or other financial accommodation
made by any such Person to Borrower, including, without limitation, all
promissory notes, guarantees, equipment leases, security agreements, mortgages
and deeds of trust, in each case, after giving effect to the notice and cure
provisions contained in such documents; or
7.1.12 Borrower shall have conveyed, sold, assigned,
encumbered or otherwise transferred all or substantially all of its assets (or
any interest therein).
7.2 CONSEQUENCES OF EVENT OF DEFAULT.
7.2.1 If an Event of Default occurs, Lender may, by notice to
Borrower, terminate and cancel its agreement to make Advances and/or declare the
unpaid principal amount of the Note and interest accrued thereon and all other
Obligations and liabilities of Borrower hereunder or under the Note or the Loan
Documents to be immediately due and payable and the same shall thereupon become
and be immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived, and an action
therefor shall immediately accrue provided, however, that if an Event of Default
specified in Section 7.1.10 or 7.1.11 occurs such results shall occur
automatically without any notice.
ARTICLE 8. MISCELLANEOUS
8.1 FURTHER ASSURANCES.
Borrower shall at any time and from time to time upon the written
request of Lender, execute and deliver such further agreements, instruments and
documents and do such further acts and things as Lender may reasonably request
in order to effect the purposes of this Agreement.
8.2 INDEMNITY.
Borrower shall indemnify, defend and hold harmless Lender from and
against, and, upon demand, reimburse Lender for, all claims, demands,
liabilities, losses, damages, judgments, penalties, costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements,
which may be imposed upon, asserted against or incurred or paid by Lender, on
account of any act performed or omitted to be performed under this Agreement,
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<PAGE> 23
the Note or the other Loan Documents or on account of any transaction arising
out of or in any way connected with this Agreement, the Note or the other Loan
Documents, except as a result of the willful misconduct or gross negligence of
Lender.
8.3 NO IMPLIED WAIVER; CUMULATIVE REMEDIES.
No course of dealing and no delay or failure of Lender in exercising
any right, power or privilege under this Agreement, the Note or any of the other
Loan Documents shall affect such right, power or privilege except as and to the
extent that the assertion of any such right, power or privilege shall be barred
by an applicable statute of limitations; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a
right, power or privilege preclude any further exercise thereof or of any other
right, power or privilege. The rights and remedies of Lender under this
Agreement, the Note or the other Loan Documents are cumulative and not exclusive
of any rights or remedies which Lender would otherwise have.
8.4 TAXES.
Borrower agrees to pay or reimburse Lender for any and all stamp,
document, transfer, recording or filing taxes or fees and all similar
impositions payable or hereafter determined by Lender to be payable in
connection with this Agreement, the Note or the other Loan Documents (including
but not limited to those necessary or advisable to record or to ensure the
enforceability or priority of this Agreement, the Note or the other Loan
Documents), as determined by Lender in its sole discretion from time to time,
and any other documents, instruments or transactions pursuant to or in
connection herewith, and Borrower agrees to save Lender harmless from and
against any and all present or future claims or liabilities with respect to or
resulting from any delay in paying or omission to pay any such taxes, fees or
similar impositions.
8.5 MODIFICATIONS, AMENDMENTS OR WAIVERS.
Lender and Borrower may from time to time enter into written agreements
amending, modifying or supplementing this Agreement, the Note or the other Loan
Documents or changing the rights of Lender or Borrower hereunder or thereunder,
and Lender may from time to time grant waivers or consents to a departure from
the due performance of the obligations of Borrower thereunder. Any such
agreement, waiver or consent must be in writing and shall be effective only to
the extent set forth in such writing. In the case of any such waiver or consent,
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<PAGE> 24
any Event of Default so waived or consented to shall be deemed to be cured and
not continuing, but no such waiver or consent shall extend to any subsequent or
other Event of Default or impair any right consequent thereto.
8.6 HOLIDAYS.
Except as otherwise provided herein, whenever any payment or action to
be made or taken hereunder or the Note or any other Loan Document shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day (and such day shall be
included in the calculation of interest due), unless such next succeeding
Business Day falls in a different calendar month, in which case payment or
action shall be made or taken on the next preceding Business Day.
8.7 NOTICES.
8.7.1 Except as otherwise provided herein, all notices and
other communications required under the terms and provisions of this Agreement,
the Note or the other Loan Documents shall be in writing and shall become
effective when delivered by hand or received by overnight courier, telex,
facsimile, telegram or registered first class mail, postage prepaid, addressed
as follows:
If to Lender, at:
FINOVA Capital Corporation
115 West Century Road
Paramus, New Jersey 07652
Facsimile No.(201) 634-3497
Attention: Bernice Carr
Vice President
with a copy to: Winick & Rich, P.C.
919 Third Avenue
New York, New York 10022
Facsimile No. 212-308-5945
Attention: Robert J. Sullivan, Esq.
If to Borrower, at:
Roadhouse Grill, Inc.
6600 N. Andrews Avenue, Ste. 160
Ft. Lauderdale, Florida 33309
Facsimile No. (954) 489-9214
Attention: Mr. Glenn Glasshagel,
Chief Financial Officer
or at such other address as either party may, from time to time, designate in
writing to the other party hereto.
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<PAGE> 25
8.7.2 If any notice is given by telex, facsimile transmission,
or telegram, the party giving such notice shall confirm such notice by a writing
delivered by hand or overnight courier; PROVIDED, HOWEVER, that for all purposes
hereunder, notice shall be deemed effective at the time given by telex,
telecopier or telegram.
8.8 REIMBURSEMENT FOR CERTAIN EXPENSES.
Borrower agrees to pay or cause to be paid and to save Lender harmless
against liability for the payment of all reasonable out-of-pocket costs and
expenses, including, without limitation, all counsel fees and costs, incurred by
Lender from time to time (i) arising in connection with the negotiation,
execution, delivery, and recordation of this Agreement, the Note and the other
Loan Documents, and the transactions contemplated hereby and thereby and all
recording or filing fees, (ii) relating to any requested amendments, waivers or
consents to or in connection with this Agreement, the Note or any other Loan
Document, and (iii) arising in connection with Lender's enforcement or
preservation of rights under this Agreement, the Note or any other Loan
Document, including but not limited to such expenses as may be incurred by
Lender in the collection of the Note.
8.9 GOVERNING LAW.
THIS AGREEMENT, THE NOTE, THE OTHER LOAN DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO AND THERETO SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA.
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<PAGE> 26
8.10 PERSONAL JURISDICTION AND SERVICE OF PROCESS.
BORROWER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST BORROWER UNDER, ARISING OUT OF, OR IN ANY MANNER RELATING TO THIS
AGREEMENT, THE NOTE OR THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE
COURT OF THE STATE OF ARIZONA LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA. BORROWER, BY ITS EXECUTION AND
DELIVERY OF THIS AGREEMENT, EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS TO
THE PERSONAL JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR
PROCEEDING. BORROWER FURTHER AGREES THAT ANY LEGAL ACTION OR PROCEEDING BORROWER
MAY BRING, ARISING OUT OF OR IN ANY MANNER RELATING TO THIS AGREEMENT OR THE
OTHER LOAN DOCUMENTS, SHALL ONLY BE BROUGHT IN ANY STATE COURT OF THE STATE OF
ARIZONA LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA. BORROWER ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF
ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO SUCH ACTION OR
PROCEEDING BY DELIVERY THEREOF TO BORROWER IN THE MANNER PROVIDED FOR NOTICES IN
THIS AGREEMENT. BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS.
BORROWER SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR PROCEEDING TO ASSERT ANY
DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE OTHER THAN THE STATE OF
ARIZONA, UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY THE LAWS OF THE STATE
OF ARIZONA. NOTHING HEREIN SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT
THE RIGHT OF LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
BORROWER IN ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW.
8.11 WAIVER OF JURY TRIAL.
BORROWER AND LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY AGREEMENT,
INSTRUMENT OR DOCUMENT EXECUTED AND DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, INCLUDING THE LOAN DOCUMENTS.
8.12 SEVERABILITY.
The provisions of this Agreement, the Note and any other Loan Document
are intended to be severable. If any such provision is held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
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<PAGE> 27
8.13 PRIOR UNDERSTANDINGS.
This Agreement and the other Loan Documents supersede all prior
understandings and agreements, whether written or oral, between the parties
hereto relating to the transactions provided for herein or therein.
8.14 SURVIVAL.
All representations and warranties of Borrower contained in this
Agreement or any other Loan Document or made in writing in connection herewith
or therewith shall survive the execution and delivery of this Agreement, the
Note and the other Loan Documents, any investigation or inspection by Lender,
the making of the Loan hereunder, the payment of the Note or the expiration of
this Agreement. All covenants and agreements of Borrower contained herein shall
continue in full force until payment in full of the Obligations. Borrower's
obligation to pay the principal of and interest on the Note and all such other
amounts shall be absolute and unconditional under any and all circumstances.
8.15 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of
Lender and Borrower and their respective successors and permitted assigns,
except that Borrower may not assign or transfer any of its rights or obligations
hereunder or any interest herein without the written consent of Lender which
Lender may withhold in its absolute discretion. Any actual or attempted
assignment by Borrower without Lender's consent shall be null, void and of no
effect whatsoever. Lender may assign its rights and obligations hereunder and
under the Note and the other Loan Documents in whole or in part. If Lender makes
such an assignment, the assignee shall have all of the rights of the Lender and
Borrower shall not assert against the assignee any defense, counterclaims or
setoff which Borrower may have against Lender. Except to the extent otherwise
required by its context, the word "Lender" where used in this Agreement shall
mean and include the holder of the Note originally issued to Lender, and the
holder of such Note shall be bound by and have the benefits of this Agreement to
the same extent as if such holder had been a signatory hereto.
8.16 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by the
different parties hereto on separate counterparts each of which, when so
executed and delivered by the parties, constituting an original but all such
counterparts together constituting but one and the same instrument.
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<PAGE> 28
8.17 PUBLICITY.
Lender is hereby authorized to issue appropriate press releases and to
cause a tombstone to be published announcing the consummation of the
transactions contemplated in this Agreement, including the aggregate amount of
the Loan.
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement effective as of the
day and year first above written.
ROADHOUSE GRILL, INC.,
a Florida corporation
By: /s/ Glenn E. Glasshagel
---------------------------------------
Title: Chief Financial Officer
Federal Tax Identification No.
FINOVA CAPITAL CORPORATION
/s/ Bernice H. Carr
-------------------------------------------
By: Bernice Carr
Title: Vice President
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<PAGE> 29
EXHIBIT A
See attached.
<PAGE> 30
PROMISSORY NOTE
$5,000,000.00 __________, 1999
Roadhouse Grill, Inc., a Florida corporation ("Borrower"), hereby promises to
pay to the order of FINOVA CAPITAL CORPORATION, ("Lender"), the principal sum of
Five Million Dollars ($5,000,000.00), or such lesser amount as represents the
aggregate of all Advances made by Lender to Borrower pursuant to the Revolving
Loan Agreement between Borrower and Lender dated the date of this Note ("Loan
Agreement") together with interest on the unpaid principal balance hereof from
time to time outstanding at the rates per annum and all on the dates and as
otherwise provided in the Loan Agreement.
This Note is the Note referred to in the Loan Agreement, including
without limitations, provisions regarding prepayment and acceleration and is
entitled to the benefits of the Loan Agreement. All capitalized terms used in
this Note which are not otherwise defined herein shall have the respective
meanings ascribed to them in the Loan Agreement.
All payments of principal and interest on this Note are to be made in
lawful money of the United States of America in immediately available funds,
without setoff, counterclaim or deduction of any nature, at the office of Lender
at 115 West Century Road, Paramus, New Jersey 07652 (or such other place as the
holder hereof shall designate to the Borrower in writing), prior to 12:00 Noon,
local time, on the day when due.
If any payment of principal or interest becomes due on a day which is
not a Business Day, that payment shall be made on the next Business Day unless
such next Business Day falls in another calendar month in which event that
payment shall be made on the next preceding Business Day.
Lender and Borrower intend this Note to comply in all respects with all
provisions of law and not to violate, in any way, any legal limitations on
interest charges. Accordingly, if, for any reason, Borrower is required to pay,
or has paid, interest at a rate in excess of the highest rate of interest which
may be charged by Lender or which Borrower may legally contract to pay under
applicable law (the "Maximum Rate"), then the interest rate shall be deemed to
<PAGE> 31
be reduced, automatically and immediately, to the Maximum Rate, and interest
payable hereunder shall be computed and paid at the Maximum Rate and the portion
of all prior payments of interest in excess of the Maximum Rate shall be deemed
to have been prepayments of the outstanding principal of this Note and applied
to the installments in the inverse order of their maturities.
If Borrower fails to make any payment of principal or interest within
ten (10) days after the payment is due, Borrower shall pay a late charge of five
percent (5%) of the unpaid amount, but in no event more than the maximum amount
permitted by applicable law, and such amount shall be payable upon demand. Such
payment is not interest for the use of money, but is intended to cover Lender's
administrative costs occasioned by such delay.
Upon the occurrence of an Event of Default, Lender shall have all of
the rights and remedies contained in the Loan Agreement, including, without
limitation, the right, at its option, to declare all indebtedness under this
Note to be immediately due and payable.
Borrower hereby expressly waives presentment for payment, demand for
payment, notice of dishonor, protest, notice of protest, notice of non-payment,
and all lack of diligence or delays in collection or enforcement of this Note or
the Loan Agreement.
Lender may extend the time of payment of this Note, postpone the
enforcement hereof, release any collateral, or grant any other indulgences
whatsoever, without affecting or diminishing Lender's right of recourse against
Borrower, as provided herein and in the Loan Agreement and in the other Loan
Documents, which right is hereby expressly reserved. The failure to assert any
right by Lender shall not be deemed a waiver thereof.
Borrower agrees to pay all costs, fees and expenses of collection,
including, without limitation, Lender's reasonable attorneys' fees and
disbursements, in the event that any action, suit or proceeding is brought by
the holder hereof to collect this Note or if an Event of Default occurs.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE
OF ARIZONA. BORROWER IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR PROCEEDING
AGAINST BORROWER UNDER, ARISING OUT OF, OR IN ANY MANNER RELATING TO THIS NOTE,
THE LOAN AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE COURT
OF THE STATE OF ARIZONA LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF ARIZONA. BORROWER, BY ITS EXECUTION AND
DELIVERY OF THIS NOTE, EXPRESSLY AND IRREVOCABLY CONSENTS AND SUBMITS TO THE
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<PAGE> 32
PERSONAL JURISDICTION OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING.
BORROWER FURTHER AGREES THAT ANY LEGAL ACTION OR PROCEEDING BORROWER MAY BRING,
ARISING OUT OF OR IN ANY MANNER RELATING TO THIS NOTE, THE LOAN AGREEMENT OR THE
OTHER LOAN DOCUMENTS, SHALL ONLY BE BROUGHT IN ANY STATE COURT OF THE STATE OF
ARIZONA LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF ARIZONA. BORROWER ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF
ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO SUCH ACTION OR
PROCEEDING BY DELIVERY THEREOF TO BORROWER IN THE MANNER PROVIDED FOR NOTICES IN
THE LOAN AGREEMENT. BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM
OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR
BASIS. BORROWER SHALL NOT BE ENTITLED IN ANY SUCH ACTION OR PROCEEDING TO ASSERT
ANY DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE OTHER THAN THE STATE OF
ARIZONA, UNLESS SUCH DEFENSE IS ALSO GIVEN OR ALLOWED BY THE LAWS OF THE STATE
OF ARIZONA. NOTHING HEREIN SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT
THE RIGHT OF LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
BORROWER IN ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW.
Lender is hereby authorized by Borrower to record on a schedule to be
annexed to this Note (or on a supplemental schedule thereto) the amount of each
Advance made by Lender to Borrower and the amount of each payment or prepayment
of principal of the Loan received by Lender, it being understood, however, that
failure to make any such notation shall not affect the rights of Lender or the
obligations of Borrower hereunder in respect of this Note. Lender may, at its
option, record such matters in its internal records rather than on such schedule
and such records shall be conclusive absent manifest error.
IN WITNESS WHEREOF, Borrower has duly executed this Note on the date
first above written.
ROADHOUSE GRILL, INC.,
a Florida corporation
By:
----------------------------------------
Title:
--------------------------------------
Federal Tax Identification No.
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<PAGE> 33
SCHEDULE TO
PROMISSORY NOTE
This Note evidences Advances made under the within described Loan
Agreement, in the principal amounts, and on the dates set forth below, subject
to payments of principal set forth below:
Principal Amount Principal Balance
Date Made of Advance Amount Paid Outstanding Initials
- --------- ---------------- ----------- ----------- --------
<PAGE> 34
EXHIBIT B
REQUEST FOR ADVANCE
See attached.
<PAGE> 35
REQUEST FOR ADVANCE
___________, 19__
To: FINOVA Capital Corporation
Attention: Loan Administration
Pursuant to Section 2.5 of the Revolving Loan Agreement, dated as of
___________, 19___ (the "Loan Agreement"), between ROADHOUSE GRILL, INC., a
__________ corporation ("Borrower"), and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("Lender"), Borrower hereby requests that Lender make an Advance to
Borrower pursuant to the Loan Agreement as follows:
1. The Business Day on which the proposed Advance is to be made is
______________, 19___. Such date shall be a Disbursement Date for purposes of
the Loan Agreement. [Must be at least 5 Business Days from the date of this
Request.]
2. The aggregate principal amount of the Advance to be made on such
date is $___________. [Not less than $100,000.00]
3. The proceeds of the Advance requested herein will be used to finance
the items and costs described on Schedule A hereto. Each of such items of costs
has been incurred in connection with the acquisition and/or construction of a
new Roadhouse Grill restaurant located at [ INSERT ADDRESS ].
4. Lender is authorized to remit the proceeds of this Advance by wire
transfer to: ____________________________, Account No. ____________ at
________________________, ABA No. ____________, Attention:
__________________________ or to such other account or by such other means as
shall be designated on Schedule A hereto.
5. Each of the representations and warranties of Borrower set forth in
Article 3 of the Loan Agreement is true and correct on the date hereof, except
to the extent any such representation and warranty relates to a particular date.
Capitalized terms defined in the Loan Agreement are used herein as
therein defined.
<PAGE> 36
WITNESS the due execution hereof by the undersigned Borrower on the
date first set forth above.
ROADHOUSE GRILL, INC.,
a ____________ corporation
By:
---------------------------------------
Title:
-------------------------------------
Federal Tax Identification No.
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<PAGE> 37
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Revolving Loan Agreement dated ________________
BETWEEN ROADHOUSE GRILL, INC. ("BORROWER")
AND
FINOVA CAPITAL CORPORATION ("LENDER")
This certificate dated _____________ is prepared pursuant to the Revolving Loan
Agreement dated _____________, ("the Agreement") between Borrower and Lender.
For the thirteen periods ended _____________:
1. CASH FLOW RATIO. Borrower shall maintain a Cash Flow Ratio, on a
rolling twelve month basis, of not less than 1.75:1.
For the thirteen periods ended ______________:
1. Net Income after income tax $_____________
2. Less: Dividends and distributions $_____________
3. Plus: Rent expense $_____________
4. Plus: Depreciation $_____________
5. Plus: Amortization
6. Plus: Amortization of capitalized
costs that relate to
preopening expenses $_____________
7. Plus: Interest expense that is
associated with all Senior
Debt and capitalized lease
obligation ("Interest Expense") $_____________
8. Total lines (1 - 7) equals:
Cash Flow as defined $_____________
9. Rent expense $_____________
10. Plus: Interest Expense $_____________
11. Plus: Current Portion of
Senior Debt $_____________
12. Plus: Current Portion of
capitalized lease obligations $_____________
13. Total lines (9-12) (equals Total
Debt Service as defined) $_____________
Cash Flow divided by Total Debt Service _____________
(Line 8 divided by line 13) = Cash Flow Ratio
Borrower is therefore ______________________ (in/out of) compliance.
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<PAGE> 38
2. LEVERAGE RATIO Borrower shall maintain a leverage ratio not greater
than 3.1 to 1.0.
1. Total Liabilities $____________
2. Total Shareholder's Equity $____________
3. Less: all assets determined to
be intangible in accordance
with GAAP $____________
4. Total line 2 less line 3
(Tangible Net Worth) $____________
5. Leverage Ratio: LINE 1 = ____________
Line 4
Borrower is therefore ________________ (in/out of) compliance.
3. NO DEFAULTS. I, _____________ (Name), _____________ (Title) do hereby
certify that with the exception of Item ___ [insert 1 and/or 2 if
Borrower not in compliance] above no Event of Default has occurred and
is continuing under the Agreement. I further certify that the financial
statements delivered in connection with this Certificate are accurate
and complete and fairly represent the financial condition of the
Borrower as of the above date.
Signed by:_______________________ Date: ______________________
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<PAGE> 1
Exhibit 10.58
FIRST UNION
PROMISSORY NOTE
$1,000,000.00 September 28, 1999
Roadhouse Grill, Inc.
6800 North Andrews Avenue
Suite 150
Ft. Lauderdale, Florida 33309
(Individually and collectively "Borrower")
First Union National Bank
301 South Tryon Street
Charlotte, North Carolina 28202
(Hereinafter referred to as "Bank")
Borrower promises to pay to the order of Bank, in lawful money of the United
States of America, at its office indicated above or wherever else Bank may
specify, the sum of One Million and No/100 Dollars ($1,000,000.00) or such sum
as may be advanced and outstanding from time to time, with interest on the
unpaid principal balance at the rate and on the terms provided in this
Promissory Note (including all renewals, extensions or modifications hereof,
this "Note").
INTEREST RATE DEFINITIONS.
LIBOR-Based Rate. 1-month LIBOR plus 1.75% ("LIBOR-Based Rate"). "LIBOR" is the
rate for U.S. dollar deposits of that many months maturity as reported on
Telerate page 3750 as of 11:00 a.m., London time, on the second London business
day before the relevant Interest Period begins (or if not so reported, then as
determined by the Bank from another recognized source or interbank quotation).
INTEREST RATE TO BE APPLIED.
Interest Rate. The unpaid principal balance of this Note shall bear interest
from the date hereof at the LIBOR-Based Rate, as determined by Bank prior to
the commencement of each consecutive interest period of 1-month (each an
"Interest Period") during the term of the Note; provided, the first Interest
Period shall commence on the date of this Note and end on the first date
thereafter that interest is due. Each LIBOR-Based Rate shall remain in effect
for the entire Interest Period until redetermined for the next successive
Interest Period.
Indemnification. Borrower shall indemnify Bank against Bank's loss or expense
in employing deposits as a consequence of (a) Borrower's failure to make any
payment when due under this Note, or (b) any payment, prepayment or conversion
of any loan on a date other than the last day of the Interest Period
("Indemnified Loss or Expense"). The amount of such Indemnified Loss or Expense
shall be determined by Bank based upon the assumption that Bank funded 100% of
that portion of the loan in the London interbank market.
Default Rate. In addition to all other rights contained in this Note, if a
Default (as defined herein) occurs and as long as a Default continues, all
outstanding Obligations shall bear interest at the LIBOR-Based Rate plus 3%
("Default Rate"), except if the Note is governed by North Carolina law and is
under or equal to $300,000.00. The Default Rate shall also apply
from acceleration until the Obligations or any judgment thereon is paid in full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall
be computed on the basis of a 360-day year for the actual number of days in
the applicable period ("Actual/360 Computation"). The Actual/360 Computation
determines the annual effective yield by taking the stated
Page 1
<PAGE> 2
(nominal) rate for a year's period and then dividing said rate by 360 to
determine the daily periodic rate to be applied for each day in the applicable
period. Application of the Actual/360 Computation produces an annualized
effective interest rate exceeding that of the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly
payments of accrued interest only, commencing on November 1, 1999, and
continuing on the same day of each month thereafter until fully paid. In any
event, all principal and accrued interest shall be due and payable on -- the
earlier of one hundred twenty (120) days from the date of this Note or the date
on which permanent financing is extended to or on behalf of Borrower for the
Concord Mills Project in Concord, North Carolina, for which project the loan
evidenced by this Note is providing interim financing.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for
application toward payment of the Obligations shall be applied to accrued
interest and then to principal. If a Default occurs, monies may be applied to
the Obligations in any manner or order deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is
rescinded, avoided or for any reason returned by Bank because of any adverse
claim or threatened action, the returned payment shall remain payable as an
obligation of all persons liable under this Note or other Loan Documents as
though such payment had not been made.
DEFINITIONS. Loan Documents. The term "Loan Documents" used in this Note and
the other Loan Documents refers to all documents executed in connection with
the loan evidenced by this Note and any prior notes which evidence all or any
portion of the loan evidenced by this Note, and any letters of credit issued
pursuant to any loan agreement to which this Note is subject, any applications
for such letters of credit and any other documents executed in connection
therewith, and may include, without limitation, a commitment letter that
survives closing, a loan agreement, this Note, guaranty agreements, security
agreements, security instruments, financing statements, mortgage instruments,
any renewals or modifications, whenever any of the foregoing are executed, but
does not include swap agreements (as defined in 11 U.S.C. ss. 101).
Obligations. The term "Obligations" used in this Note refers to any and all
indebtedness and other obligations under this Note, all other obligations under
any other Loan Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. ss. 101) between Borrower and Bank whenever executed.
Certain Other Terms. All terms that are used but not otherwise defined in any
of the Loan Documents shall have the definitions provided in the Uniform
Commercial Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to
Bank a late charge equal to 4% of each payment past due for 15 or more days.
Acceptance by Bank of any late payment without an accompanying late charge
shall not be deemed a waiver of Bank's right to collect such late charge or to
collect a late charge for any subsequent late payment received.
ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's
reasonable expenses incurred to enforce or collect any of the Obligations
including, without limitation, reasonable arbitration, paralegals', attorneys'
and experts' fees and expenses, whether incurred without the commencement of a
suit, in any trial, arbitration, or administrative proceeding, or in any
appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but
for this paragraph, exceed the maximum lawful rate, the effective rate under
this Note shall be the maximum lawful rate, and any amount received by Bank in
excess of such rate shall be applied to principal and then to fees and
expenses, or, if no such amounts are owing, returned to Borrower.
DEFAULT. If any of the following occurs, a default ("Default") under this Note
shall exist: Nonpayment; Nonperformance. The failure of timely payment or
performance of the Obligations or Default under this Note or any other Loan
Documents. False Warranty. A warranty representation made or deemed
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<PAGE> 3
made in the Loan Documents or furnished Bank in connection with the loan
evidenced by this Note proves materially false, or if of a continuing nature,
becomes materially false.
Cross Default. At Bank's option, any default in payment or performance of any
obligation under any other loans, contracts or agreements of Borrower, any
Subsidiary or Affiliate of Borrower, any general partner of or the holder(s) of
the majority ownership interests of Borrower with Bank or its affiliates
("Affiliate" shall have the meaning as defined in 11 U.S.C. Section 101, except
that the term "Borrower" shall be substituted for the term "Debtor" therein;
"Subsidiary" shall mean any business in which Borrower holds, directly or
indirectly, a controlling interest).
Cessation; Bankruptcy. The death of, appointment of a guardian for, dissolution
of, termination of existence of, loss of good standing status by, appointment of
a receiver for, assignment for the benefit of creditors of, or commencement of
any bankruptcy or insolvency proceeding by or against Borrower, its Subsidiaries
or Affiliates, if any, or any general partner of or the holder(s) of the
majority ownership interests of Borrower, or any party to the Loan Documents.
Material Capital Structure or Business Alteration. Without prior written consent
of Bank, (i) a material alteration in the kind or type of Borrower's business or
that of Borrower's Subsidiaries or Affiliates, if any; (ii) the sale of
substantially all of the business or assets of Borrower, any of Borrower's
Subsidiaries or Affiliates or any guarantor, or a material portion (10% or more)
of such business or assets if such a sale is outside the ordinary course of
business of Borrower, or any of Borrower's Subsidiaries or Affiliates or any
guarantor, or more than 50% of the outstanding stock or voting power of or in
any such entity in a single transaction or a series of transactions; (iii) the
acquisition of substantially all of the business or assets or more than 50% of
the outstanding stock or voting power of any other entity; or (iv) should any
Borrower, or any of Borrower's Subsidiaries or Affiliates or any guarantor enter
into any merger or consolidation.
REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan
Documents, Bank may at any time thereafter, take the following actions:
Bank Lien. Foreclose its security interest or lien against Borrower's accounts
without notice.
Acceleration Upon Default. Accelerate the maturity of this Note and, at Bank's
option, any or all other Obligations, whereupon this Note and the accelerated
Obligations shall be immediately due and payable.
Cumulative. Exercise any rights and remedies as provided under the Note and
other Loan Documents, or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information
as Bank may reasonably request from time to time, including without limitation,
financial statements and information pertaining to Borrower's financial
condition. Such information shall be true, complete, and accurate.
YEAR 2000 COMPATIBILITY. Borrower shall take all action necessary to assure that
Borrower's computer based systems are able to operate and effectively process
data including dates on and after January 1, 2000. At the request of Bank,
Borrower shall provide Bank assurance acceptable to Bank of Borrower's Year 2000
compatibility.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and
other Loan Documents shall be valid unless in writing and signed by an officer
of Bank. No waiver by Bank of any Default shall operate as a waiver of any other
Default or the same Default on a future occasion. Neither the failure nor any
delay on the part of Bank in exercising any right, power, or remedy under this
Note and other Loan Documents shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
Each Borrower or any person liable under this Note waives presentment, protest,
notice of dishonor, demand for payment, notice of intention to accelerate
maturity, notice of acceleration of maturity, notice of sale and all other
notices of any kind. Further, each agrees that Bank may extend, modify or renew
this Note or make a novation of the loan evidenced by this Note for any period,
and grant any releases, compromises or indulgences with respect to any
collateral securing this Note, or with respect to any other Borrower or any
other person liable under this Note or other Loan Documents, all without notice
to or consent of each Borrower or each person who may be liable under this Note
or any other Loan Document and without affecting the liability of Borrower or
any person who may be liable under this Note or any other Loan Document.
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<PAGE> 4
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents
shall inure to the benefit of and be binding upon the parties and their
respective heirs, legal representatives, successors and assigns. Bank's
interests in and rights under this Note and the other Loan Documents are freely
assignable, in whole or in part, by Bank. In addition, nothing in this Note or
any of the other Loan Documents shall prohibit Bank from pledging or assigning
this Note or any of the other Loan Documents or any interest therein to any
Federal Reserve Bank. Borrower shall not assign its rights and interest
hereunder without the prior written consent of Bank, and any attempt by Borrower
to assign without Bank's prior written consent is null and void. Any assignment
shall not release Borrower from the Obligations.
Applicable Law; Conflict Between Documents. This Note and the other Loan
Documents shall be governed by and construed under the laws of the state named
in Bank's address shown above without regard to that state's conflict of laws
principles. If the terms of this Note should conflict with the terms of the Loan
Agreement or any commitment letter that survives closing, the terms of this Note
shall control.
Borrower's Accounts. Except as prohibited by law, Borrower grants Bank a
security interest in all of Borrower's accounts with Bank and any of its
affiliates.
Jurisdiction. Borrower irrevocably agrees to non-exclusive personal jurisdiction
in the state named in Bank's address shown above.
Severability. If any provision of this Note of the other Loan Documents shall be
prohibited or invalid under applicable law, such provision shall be ineffective
but only to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Note or
other such document.
Notices. Any notices to Borrower shall be sufficiently given, if in writing and
mailed or delivered to the Borrower's address shown above or such other address
as provided hereunder, and to Bank, if in writing and mailed or delivered to
Bank's office address shown above or such other address as Bank may specify in
writing from time to time. In the event that Borrower changes Borrower's address
at any time prior to the date the Obligations are paid in full, Borrower agrees
to promptly given written notice of said change of address by registered or
certified mail, return receipt requested, all charges prepaid.
Plural; Captions. All references in the Loan Documents to Borrower, guarantor,
person, document or other nouns of reference mean both the singular and plural
form, as the case may be, and the term "person" shall mean any individual,
person or entity. The captions contained in the Loan Documents are inserted for
convenience only and shall not affect the meaning or interpretation of the Loan
Documents.
Advances. Bank may, in its sole discretion, make other advances which shall be
deemed to be advances under this Note, even though the stated principal amount
of this Note may be exceeded as a result thereof.
Posting of Payments. All payments received during normal banking hours after
2:00 p.m. local time at the office of Bank first shown above shall be deemed
received at the opening of the next banking day.
Joint and Several Obligations. Each person who signs this Note is a Borrower and
is jointly and severally obligated.
Fees and Taxes. Borrower shall promptly pay all documentary, intangible
recordation and/or similar taxes on this transaction whether assessed at closing
or arising from time to time.
ARBITRATION. Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising out of
or relating to the Loan Documents between parties hereto (a "Dispute") shall be
resolved by binding arbitration conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and the Federal Arbitration Act. Disputes
may include, without limitation, tort claims, counterclaims, a dispute as to
whether a matter is subject to arbitration, claims brought as class actions, or
claims arising from documents executed in the future. A judgment upon the award
may be entered in any court having jurisdiction. Notwithstanding the foregoing,
this arbitration provision does not apply to disputes under or related to swap
agreements.
Special Rules. All arbitration hearings shall be conducted in the city named in
the address of Bank first stated above. A hearing shall begin within 90 days of
demand for arbitration and all hearings shall conclude within 120 days of demand
for arbitration. These time limitations may not be extended unless a party shows
cause for extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 ET SEQ. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be licensed
attorneys selected from the Commercial Financial Dispute Arbitration Panel of
the AAA. The parties do not waive applicable Federal or state substantive law
except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding binding
arbitration provisions, the parties agree to preserve, without diminution,
certain remedies that any party may exercise before or after an arbitration
proceeding is brought. The parties shall have the right to proceed in any court
of proper jurisdiction or by self-help to
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<PAGE> 5
exercise or prosecute the following remedies, as applicable: (i) all rights to
foreclose against any real or personal property or other security by exercising
a power of sale or under applicable law by judicial foreclosure including a
proceeding to confirm the sale; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off, and peaceful
possession of personal property; (iii) obtaining provisional or ancillary
remedies including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding; and
(iv) when applicable, a judgment by confession of judgment. Any claim or
controversy with regard to any party's entitlement to such remedies is a
Dispute.
Waiver of Exemplary Damages. The parties agree that they shall not have a remedy
of punitive or exemplary damages against other parties in any Dispute and hereby
waive any right or claim to punitive or exemplary damages they have now or which
may arise in the future in connection with any Dispute whether the Dispute is
resolved by arbitration or judicially.
Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING
ARBITRATION THEY HAVE IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL
WITH REGARD TO A DISPUTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has
caused this Note to be executed under seal.
PLACE OF EXECUTION AND DELIVERY. Borrower hereby certifies that this Agreement
and the Loan Documents were executed in the State of North Carolina and
delivered to Bank in the State of North Carolina.
Roadhouse Grill, Inc.
Taxpayer Identification Number: 65-0367604
CORPORATE By: /s/ Ayman Sabi
SEAL --------------------------------------
Ayman Sabi, CEO/President
/s/ Martin Bernholz
--------------------------------------
Martin Bernholz, Counsel/Secretary
Page 5
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