1
EXHIBIT 10.8
CREDIT AGREEMENT
dated as of
_____________, 1997
between
STACEY'S BUFFET, INC.
and
STAR BUFFET, INC.
2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.....................................................................................1
Section 1.2. Accounting Terms and Determinations.............................................................8
Section 1.3. References......................................................................................9
Section 1.4. Use of Defined Terms............................................................................9
Section 1.5. Terminology ..............................................................................9
ARTICLE II
THE CREDIT
Section 2.1. Loan............................................................................................9
Section 2.2. Miscellaneous Matters...........................................................................9
Section 2.3. Maturity of Loan...............................................................................10
Section 2.4. Interest.......................................................................................10
Section 2.5. Optional Prepayments...........................................................................10
Section 2.6 Prepayment at Election of Lender Upon Change of Control........................................10
Section 2.7. General Provisions as to Payments..............................................................10
Section 2.8. Collateral.....................................................................................11
ARTICLE III
CONDITIONS TO CLOSING
Section 3.1.Conditions to Closing................................................................................12
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Corporate Existence and Power..................................................................13
Section 4.2. Corporate and Governmental Authorization; No Contravention.....................................13
Section 4.3. Binding Effect.................................................................................13
Section 4.4. Financial Information..........................................................................13
Section 4.5. No Litigation..................................................................................14
Section 4.6. Compliance with ERISA..........................................................................14
Section 4.7. Compliance with Laws; Payment of Taxes.........................................................14
Section 4.8. No Subsidiaries................................................................................14
Section 4.9. Investment Company Act.........................................................................14
Section 4.10. Public Utility Holding Company Act.............................................................14
Section 4.11. Ownership of Property; Liens...................................................................15
Section 4.12. No Default.....................................................................................15
Section 4.13. Full Disclosure................................................................................15
Section 4.14. Environmental Matters..........................................................................15
Section 4.15. Capital Stock..................................................................................15
Section 4.16. Margin Stock...................................................................................15
Section 4.17. Insolvency.....................................................................................16
i
3
ARTICLE V
COVENANTS
Section 5.1. Information....................................................................................16
Section 5.2. Inspection of Property, Books and Records......................................................18
Section 5.3. Restricted Payments............................................................................18
Section 5.4. Limitation on Indebtedness.....................................................................18
Section 5.5. Loans or Advances..............................................................................19
Section 5.6. Investments....................................................................................19
Section 5.7. Negative Pledge................................................................................20
Section 5.8. Maintenance of Existence.......................................................................20
Section 5.9. Dissolution....................................................................................20
Section 5.10. Consolidations, Mergers and Sales of Assets....................................................20
Section 5.11. Use of Proceeds................................................................................21
Section 5.12. Compliance with Laws; Payment of Taxes; SEC Filings............................................21
Section 5.13. Insurance......................................................................................21
Section 5.14. Change in Fiscal Year..........................................................................21
Section 5.15. Maintenance of Property........................................................................21
Section 5.16. Environmental Notices..........................................................................21
Section 5.17. Environmental Matters..........................................................................22
Section 5.18. Environmental Release..........................................................................22
Section 5.19. Transactions with Affiliates...................................................................22
ARTICLE VI
DEFAULTS
Section 6.1. Events of Default..............................................................................22
ARTICLE VII
MISCELLANEOUS
Section 7.1. Notices........................................................................................24
Section 7.2 No Waivers.....................................................................................25
Section 7.3 Expenses, Documentary Taxes....................................................................25
Section 7.4. Indemnification................................................................................25
Section 7.5. Amendments and Waivers.........................................................................25
Section 7.6. Successors and Assigns.........................................................................26
Section 7.7. Confidentiality................................................................................27
Section 7.8. California Law.................................................................................27
Section 7.9. Severability...................................................................................27
Section 7.10. Interest.......................................................................................27
Section 7.11. Interpretation.................................................................................28
Section 7.12. Waiver of Jury Trial; Consent to Jurisdiction..................................................28
Section 7.13. Counterparts...................................................................................28
ii
4
EXHIBITS
--------
EXHIBIT A Form of Promissory Note
---------
EXHIBIT B Form of Warrant
---------
EXHIBIT C Form of Registration Rights Agreement
---------
EXHIBIT D Form of Borrower Security Agreement
---------
EXHIBIT E Form of Opinion Borrower's Counsel
---------
SCHEDULES
---------
Schedule 4.4 Material Adverse Effects
------------
Schedule 4.5 Litigation
------------
Schedule 5.4 Indebtedness
------------
Schedule 5.5 Loans
------------
Schedule 5.7 Liens
------------
iii
5
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") is entered into as of this ___
day of __________, 1997, by and between STACEY'S BUFFET, INC. a Florida
corporation (the "Borrower") and STAR BUFFET, INC., a Delaware corporation
("Lender").
WHEREAS, the Borrower has requested that lender make a loan of Two
Million Dollars ($2,000,000) to Borrower, and lender is willing to make such
loan to Borrower, upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Affiliate" means (i) any Person that directly, or indirectly through
one or more intermediaries, controls the Borrower (a "Controlling Person"), (ii)
any Person (other than the Borrower or a Subsidiary) which is controlled by or
is under common control with a Controlling Person, or (iii) any Person (other
than a Subsidiary) of which the Borrower owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests, excluding existing
joint ventures. As used herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. It is acknowledged and agreed that Lender is not an
Affiliate of Borrower.
"Agreement" means this Credit Agreement, together with all amendments
and supplements hereto and all exhibits and schedules hereto.
"Assignee" has the meaning set forth in Section 7.6(c).
"Assignment Agreement" means an Assignment Agreement executed in
accordance with Section 7.6(c).
"Base Rate" shall be an interest rate per annum equal to the sum of (i)
the Prime Rate from time to time in effect, plus (ii) two percent (2.0%), which
shall change as and when the Prime Rate changes.
"Borrower" means Stacey's Buffet, Inc., a Florida corporation, and its
successors and its permitted assigns.
6
"Borrower Security Agreement" shall mean the Security Agreement,
substantially in the form of Exhibit D hereto, executed and delivered by the
Borrower to the Lender, together with all amendments and modifications thereto.
"Capital Stock" means any nonredeemable capital stock of the Borrower
or any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation
and Liability Act, 42 U.S.C. ss. 9601 et. seq. and its implementing regulations
and amendments.
"CERCLIS" means the Comprehensive Environmental Response Compensation
and Liability Inventory System established pursuant to CERCLA.
"Change of Control" means the occurrence of any of the following
events: (a) the acquisition after the Closing Date, in one or more transactions,
of "beneficial ownership" (within the meaning of Section 13(d) under the
Exchange Act and the rules and regulations promulgated thereunder) by (i) any
Person or entity, or (ii) any group of Persons or entities who constitute a
group (within the meaning of Section 13 of the Exchange Act), in either case, of
any securities of the Borrower such that, as a result of such acquisition, such
Person, entity or group either (A) "beneficially owns" (within the meaning of
Rule 13 under the Exchange Act), directly or indirectly 20% or more of the
Borrower's then outstanding voting securities entitled to vote on the election
of directors of the Borrower ("Voting Securities") (it being understood that
this clause (A) shall not apply if the Lender or its Affiliates acquire
beneficial ownership of 20% or more of Borrower's than outstanding Voting
Securities) or (B) otherwise has the ability to elect, directly or indirectly, a
majority of the members of the Borrower's Board of Directors; (b) during any
period of two consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together with any new
directors selected by such Board of Directors or whose nomination for election
by the stockholders of the Borrower was approved by a vote of 66-2/3 % of the
directors of the Borrower then still in office who are either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
members of the Board of Directors of the Borrower then in office; (c) the sale,
lease, transfer or other disposition of all or substantially all of the assets
of the Borrower as entirety or substantially as an entirety in one transaction
or a series of related transactions; (d) the liquidation or dissolution of the
Borrower; or (e) any transaction permitted under Section 5.10 which results in
any of the foregoing.
"Closing Certificate" has the meaning set forth in Section 3.1(f).
"Closing Date" means the date on which all matters set forth in Section
3.1 are satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code.
"Collateral" has the meaning set forth in the Borrower Security
Agreement.
2
7
"Compliance Certificate" has the meaning set forth in Section
5.1(a)(iii).
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which, in accordance with GAAP, would be consolidated
with those of the Borrower in its consolidated financial statements as of such
date.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower, are treated as a single
employer under Section 414 of the Code.
"Default" has the meaning set forth in Section 6.1.
"Default Rate" means a rate per annum equal to the sum of the then
applicable Base Rate plus two percent (2%).
"Dollars" or "$" means dollars in lawful currency of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in the State of California are authorized by
law to close.
"Environmental Authority" means any foreign, federal, state, local or
regional government that exercises any form of jurisdiction or authority under
any Environmental Requirement.
"Environmental Authorizations" means all licenses, permits, orders,
approvals, notices, registrations or other legal prerequisites for conducting
the business of the Borrower or any Wholly Owned Subsidiary required by any
Environmental Requirement.
"Environmental Judgments and Orders" means all judgments, decrees or
orders arising from or in any way associated with any Environmental
Requirements, whether or not entered upon consent or written agreements with an
Environmental Authority or other entity arising from or in any way associated
with any Environmental Requirement.
"Environmental Liabilities" means any liabilities, whether accrued,
contingent or otherwise, arising from and in any way associated with any
Environmental Requirements.
"Environmental Notices" means notice from any Environmental Authority,
of possible or alleged noncompliance with or liability under any Environmental
Requirement, including without limitation any complaints, citations, demands or
requests from any Environmental Authority or from any other person or entity for
correction of any, violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental Requirement.
"Environmental Proceedings" means any judicial or administrative
proceedings arising from or in any way associated with any Environmental
Requirement.
"Environmental Releases" means releases as defined in CERCLA or under
any applicable state or local environmental law or regulation.
3
8
"Environmental Requirements" means any legal requirement relating to
health, safety or the environment and applicable to the Borrower, any Wholly
Owned Subsidiary or the Properties, including but not limited to any such
requirement under CERCLA or similar state legislation and all federal, state and
local laws, ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Event of Default" has the meaning set forth in Section 6.1.
"Fiscal Quarter" means any fiscal quarter of the Borrower, it being
understood that each of the first, second and fourth fiscal quarters of each
Fiscal Year consists of three Reporting Periods and the third fiscal quarter
consists of four Reporting Periods.
"Fiscal Year" means any fiscal year of the Borrower consisting of the
52 or 53 week period generally ending on the Wednesday closest to December 31.
"GAAP" means generally accepted accounting principles applied on a
basis consistent with those which, in accordance with Section 1.2, are to be
used in making the calculations for purposes of determining compliance with the
terms of this Agreement.
"Hazardous Materials" includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. ss. 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof or
(d) insecticides, fungicides, or rodenticides, as defined in the Federal
Insecticide, Fungicide, and Rodenticide Act of 1975, or in any applicable state
or local law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"Indebtedness" shall have the meaning set forth in Section 5.4.
"Interest Period" means the period commencing on the first day of each
calendar month and ending on the last day of such calendar month; provided,
that:
(a) any Interest Period (other than an Interest Period
determined pursuant to paragraph (b) below) which would otherwise end
on a day which is not a Domestic Business Day shall be extended to the
next succeeding Domestic Business Day;
(b) the first Interest Period shall commence on the date of
this Agreement and shall end on [September 30], 1997; and
(c) any Interest Period which begins before the Termination
Date and would otherwise end after the Termination Date shall end on
the Termination Date.
4
9
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lender" means Star Buffet, Inc., a Delaware corporation, and its
successors and assigns.
"Lending Office" means, as to Lender, its office located at its address
set forth on the signature pages hereof or identified on the signature pages
hereof as its Lending Office or such other office as such Lender may hereafter
designate as its Lending Office by notice to the Borrower.
"Lien" means, with respect to any asset, any mortgage, deed to secure
debt, deed of trust, lien, pledge, charge, security interest, security title, or
encumbrance or servitude of any kind in respect of such asset to secure or
assure payment of a Indebtedness or a Guarantee, whether by consensual agreement
or by operation of statute or other law, or by any agreement, contingent or
otherwise, to provide any of the foregoing. For the purposes of this Agreement,
a Person shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease (as determined under GAAP) or other
title retention agreement relating to such asset. Provided, however, an
operating lease (as determined under GAAP) shall not constitute a Lien.
"Loan" shall have the meaning set forth in Section 2.1 below .
"Loan Documents" means this Agreement, the Note, the Warrants, the
Borrower Security Agreement, the Post-Closing Collateral Documents, the
Registration Rights Agreement, the Mortgage Documents and any other document
evidencing, relating to or securing the obligations of the Borrower hereunder,
and any other document or instrument delivered from time to time in connection
with the foregoing documents, or the obligations of the Borrower hereunder, as
such documents and instruments may be amended, modified or supplemented from
time to time.
"Margin Stock" means "margin stock" as defined in Regulations G, T, U
or X.
"Material Adverse Effect" means, with respect to any event, act,
condition or occurrence, of whatever nature (including any adverse determination
in any litigation, arbitration, or governmental investigation or proceeding that
is not a judgment giving rise to a Default), whether singly or in conjunction
with any other event or events, act or acts, condition or conditions, occurrence
or occurrences, whether or not related, a material adverse change in, or a
material adverse effect upon, any of (a) the financial condition, operations,
business, properties or prospects of the Borrower and its Consolidated
Subsidiaries taken as a whole, (b) the rights and remedies of the Lender under
the Loan Documents, or (c) the legality, validity or enforceability of any Loan
Document.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
5
10
"Note" means the Promissory Note, in the form attached hereto as
Exhibit A, delivered to Lender to evidence the Loan together with all
amendments, consolidations, modifications, renewals and supplements thereto, and
replacements thereof.
"Participant" has the meaning set forth in Section 7.6(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, an
unincorporated association, a trust or any other entity or organization,
including, but not limited to, a government or political subdivision or an
agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (i) maintained by a member of the
Controlled Group for employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
a member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five (5) plan years made
contributions.
"Post-Closing Collateral" has the meaning set forth in Section 2.8(a).
"Post-Closing Collateral Documents" has the meaning set forth in
Section 2.8(a).
"Prime Rate" shall mean, for ▇▇▇.▇▇▇, a floating rate equal to the rate
publicly quoted from time to time by The Wall Street Journal as the "base rate
on corporate loans at large U.S. money center commercial banks" (or, if The Wall
Street Journal ceases quoting a base rate of the type described, the highest per
annum rate of interest published by the Federal Reserve Board in Federal Reserve
statistical release H.15 (519) entitled "Selected Interest Rates" as the Bank
prime loan rate or its equivalent). Each change in any interest rate provided
for in the Agreement based upon the Prime Rate shall take effect at the time of
such change in the Prime Rate.
"Properties" means all real property owned, leased or otherwise used or
occupied by the Borrower or any Consolidated Subsidiary, wherever located.
"Registration Rights Agreement" means the Registration Rights
Agreement, in the form of Exhibit C hereto, executed and delivered by the
Borrower and Lenders.
"Regulation G" means Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
6
11
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Reporting Period" means, with respect to any Fiscal Year, each
consecutive 4 week period beginning on the first day of such Fiscal Year.
"Restricted Payment" means (i) any dividend or other distribution on
any shares of the Borrower's capital stock (except dividends payable solely in
shares of its capital stock) or (ii) any cash payment on account of the
purchase, redemption, retirement or acquisition (excluding therefrom any nominal
amount of cash paid in lieu of fractional shares of Capital Stock issued in the
ordinary course of business) of (a) any shares of the Borrower's capital stock
(except shares acquired upon the conversion thereof into other shares of its
capital stock) or (b) any option, warrant or other right to acquire shares of
the Borrower's capital stock.
"Retail Building" means any removable restaurant building owned by the
Borrower and operated under the "Stacey's" trade name and all related equipment
and moveable site improvements.
"Rights Agreement" shall mean that certain Rights Agreement dated
November 1, 1996 by and between Stacey's Buffet, Inc. and American Stock
Transfer and Trust Company.
"Stacey's Restaurant" shall mean any and all restaurants operated as a
Stacey's Buffet, whether owned or operated by the Borrower or any other Person.
"Subsidiary" means any corporation or other entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower, and any partnership in which
the Borrower or any Consolidated Subsidiary is a general partner.
"Termination Date" means the fifth (5th) anniversary of the date of
this Agreement.
"Transferee" has the meaning set forth in Section 7.6(d).
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then most
recent valuation date for such Plan, but only to the extent that such excess
represents a potential liability of a member of the Controlled Group to the PBGC
or the Plan under Title IV of ERISA.
"Warrants" mean the warrants to purchase shares of Borrower's Common
Stock in the form attached hereto as Exhibit B to be issued to the Lender on the
Closing Date pursuant to Section 2.1(a).
7
12
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares) are at the time directly or indirectly owned by the Borrower.
Section 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP, applied on a basis consistent (except for changes with
which the Borrower's independent public accountants concur or that are otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Lenders except for any change in which the Borrower's independent public
accountants concur or is required by GAAP, in determining compliance with any of
the provisions of this Agreement or any of the other Loan Documents: (i) the
Borrower shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements, or (ii) the Required Lenders
shall so object in writing within 30 days after the delivery of such financial
statements, in either of which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made (which, if objection is made
in respect of the first financial statements delivered under Section 5.1 hereof,
shall mean the financial statements referred to in Section 4.4).
Section 1.3. References. Unless otherwise indicated, references in this
Agreement to "Articles", "Exhibits", "Schedules", "Sections" and other
Subdivisions are references to articles, exhibits, schedules, sections and other
subdivisions hereof.
Section 1.4. Use of Defined Terms. All terms defined in this Agreement
shall have the same defined meanings when used in any of the other Loan
Documents, unless otherwise defined therein or unless the context shall require
otherwise.
Section 1.5. Terminology. All personal pronouns used in this Agreement,
whether used in the masculine, feminine or neuter gender, shall include all
other genders; the singular shall include the plural, and the plural shall
include the singular. Titles of Articles and Sections in this Agreement are for
convenience only, and neither limit nor amplify the provisions of this
Agreement.
8
13
ARTICLE II
THE CREDIT
Section 2.1. Loan. Lender agrees, subject to the terms and conditions
set forth herein and based on the representations and warranties set forth
herein, to loan to Borrower, and Borrower agrees to borrow from Lender, the
principal amount of Two Million Dollars ($2,000,000.00) on the Closing Date (the
"Loan"). In consideration for making the Loan, on the Closing Date, the Borrower
shall grant to the Lender warrants for the purchase of an aggregate of 1,342,422
shares of the Borrower's Common Stock at an exercise price of $1.00 each, which
warrants may be exercised in accordance with and subject to the terms and
conditions of the Warrants.
Section 2.2. Miscellaneous Matters.
(a) Prior to the Closing Date, Borrower has amended, or will
amend prior to the Closing Date, the Borrower's Rights Agreement to provide that
neither the acquisition of shares of Borrower by Lender or any of its affiliates
nor the execution, delivery and performance of this Agreement and the Loan
Documents, including the Warrants, or the consummation of the transactions
contemplated thereby will (i) cause Lender or any of its affiliates to become an
Acquiring Person (as such term is defined in the Rights Agreement), or (ii)
otherwise affect the rights of the holders of Rights (as such term is defined in
the Rights Agreement), including by causing such Rights to separate from the
underlying shares or by giving such holders the right to acquire securities of
any party hereto.
(b) Upon the closing, the Borrower shall take all corporate
actions necessary to (i) increase the size of Borrower's Board of Directors to
five (5) from three (3); and (ii) elect to the Board of Directors of the
Borrower two (2) designees of the Lender, and such Board of Directors shall
consist of five (5) Persons, of whom two (2) Persons shall have been designated
by the Lender. At each election of directors from and after the Closing Date,
the Borrower shall nominate for election to its Board of Directors and recommend
to its stockholders the election of two (2) designees of the Lender to the Board
of Directors. No change in the actual number of directors of the Borrower shall
be made without the prior written consent of the Lender.
Section 2.3. Maturity of Loan. The Loan shall mature, and the principal
amount thereof, if any, together with all accrued but unpaid interest thereon,
if any, shall be due and payable on the applicable Termination Date without
notice to or demand upon the Borrower.
Section 2.4. Interest. The Borrower agrees to pay interest in respect
of the principal amount of the Loan, for each day from the date such Loan is
made until such Loan shall be paid in full at a rate per annum equal to the Base
Rate from time to time in effect, such interest rate to change as and when the
Base Rate changes and to be computed on the basis of a 360-day year and paid for
the actual number of days elapsed. Interest on the Loan shall accrue from and
including the making of the Loan and shall be payable monthly in arrears, for
each Interest Period, on the 15th day of the calendar month immediately
following the end of such Interest Period. Any overdue principal of and, to the
extent permitted by applicable law, overdue interest on the Loan shall bear
interest, payable on demand, for each day until paid at a rate per annum equal
to the
9
14
Default Rate. After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by applicable law,
all accrued interest thereon) shall, at the election of the Lender, bear
interest at the Default Rate.
Section 2.5. Optional Prepayments The Borrower may, upon at least five
Domestic Business Day's notice to the Lender, prepay the Loan by an aggregate
amount of at least $100,000 or any larger multiple of $100,000, without premium
or penalty.
Section 2.6. Prepayment at Election of Lender Upon Change of Control.
Upon the occurrence of a Change of Control, Lender shall have the right to
require the Borrower to prepay the then outstanding principal amount thereof,
plus accrued and unpaid interest, if any, to the date of prepayment. Within five
Domestic Business Days following any Change of Control, the Borrower will mail a
notice thereof to Lender, (a "Change of Control Notice"). Lender, by written
notice to the Borrower within 30 days following receipt of such Change of
Control Notice, may elect prepayment of its Notes and the Borrower shall prepay
such Notes at the price specified above no later than 30 days thereafter.
Section 2.7. General Provisions as to Payments. The Borrower shall make
each payment of principal of, and interest on, the Loan not later than 11:00
A.M. (Pacific Time) on the date when due, in Federal or other funds immediately
available. Whenever any payment of principal of, or interest on, the Loans or of
fees hereunder shall be due on a day which is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day.
Section 2.8. Collateral.
(a) In addition to the collateral security granted by the
Borrower and the Guarantors under the Security Agreements the Borrower shall, at
the sole cost and expense of the Borrower, grant to the Lender and do all things
requested to maintain, for the benefit of the Lender to secure all obligations
of the Borrower under the loan documents, a continuing, blanket and general lien
upon and security interest and title in and to all real property, equipment,
inventory, general intangibles, personal property and assets of the Borrower and
the Guarantors, or other assets as the Lenders shall designate in its reasonable
discretion (the "Post-Closing Collateral") and shall deliver (or cause to be
delivered) to the Lender such duly executed security agreements, security deeds,
mortgages, deeds of trust, estoppels, subordination agreements, pledge
agreements, stock powers, Uniform Commercial Code financing statements, title
certificates, affidavits, and other documents, as are reasonably necessary or
desirable in the judgment of the Lender to perfect first priority liens (as such
first priority may be available) against the Post-Closing Collateral
(collectively, the "Post-Closing Collateral Documents").
(b) The Borrower shall (and shall cause each of the Guarantors
to), after an Event of Default, at the sole cost and expense of the Borrower,
deliver (or cause to be delivered) to the Lender such appraisals, surveys, title
searches, title policies, environmental audits and other documents, all of which
shall be satisfactory to the Lender in all respects, as are deemed reasonably
necessary or desirable by the Lender in connection with the Collateral.
(c) The Borrower agrees to pay all costs and expenses incurred
by the Lender in connection with the actions contemplated by this Section 2.8,
including, without limitation, all
10
15
filing fees, lien search fees, intangible taxes (whether incurred before or
after payment in full of the Loan), documentary stamp taxes (whether incurred
before or after payment in full of the Loan), surveys, environmental surveys,
and title reports. All such documentation shall be reasonable and customary and
in form and substance satisfactory to the Lender in its discretion. The Borrower
hereby irrevocably appoints the Lender as the Borrower's attorney-in-fact to (i)
deliver and record in the appropriate filing office any instrument contemplated
or required hereby (including, without limitation, the relevant security deeds,
mortgages, deeds of trust, and Uniform Commercial Code financing statements) and
to pay the related recording expenses and (ii) from time to time in the Lender's
discretion, to take any other action which the Lender may deem reasonably
necessary or advisable to accomplish the purposes of this Section 2.8 with
respect to the Collateral. At each time Lender exercises the foregoing power of
attorney it shall provide notice thereof to Borrower, including a copy of any
documentation so executed.
ARTICLE III
CONDITIONS TO CLOSING
Section 3.1. Conditions to Closing. The obligation of Lender to make
the Loan is subject to the satisfaction of the conditions set forth below and
receipt by the Lender of the documents, instruments, agreements and certificates
set forth below:
(a) duly executed original of the Note;
(b) duly executed original of the Warrants;
(c) duly executed Registration Rights Agreement;
(d) duly executed Security Agreements;
(e) a certificate (the "Closing Certificate") dated as of the
Closing Date, signed by the chief executive officer and the chief financial
officer of the Borrower, to the effect that (i) the representations and
warranties of the Borrower contained in Article IV are true on and as of the
Closing Date; (ii) Borrower and each of its Subsidiaries has complied with or
performed with all covenants and agreements which is required to have performed
or complied with on or prior to the Closing Date; and (iii) no event, act or
condition has occurred after January 1, 1997 which has had or could have a
Material Adverse Effect.
(f) an opinion letter (together with any opinions of local
counsel relied on therein) of, counsel for the Borrower, dated as of the Closing
Date, substantially in the form of Exhibit E and covering such additional
matters relating to the transactions contemplated hereby as the Lender may
reasonably request;
(g) all documents which the Lender may reasonably request
relating to the existence of the Borrower and the Guarantors, the corporate
authority for and the validity of this Agreement, the Note, the Warrants and the
other Loan Documents and any other matters relevant hereto, or thereto, all in
form and substance reasonably satisfactory to the Lender, including, without
limitation, a certificate of incumbency of each of the Borrower and the
Guarantors, signed by the Secretary or an Assistant Secretary of the Borrower
and the Guarantors, certifying as to the
11
16
names, true signatures and incumbency of the officer or officers, respectively,
of the Borrower and the Guarantors authorized to execute and deliver the Loan
Documents, and certified copies of the following items, for the Borrower and
each of the Guarantors, respectively: (i) Certificate/Articles of Incorporation,
(ii) Bylaws, (iii) a certificate of the Secretary of State of the state of
incorporation of each as to the good standing of each as a corporation in that
state, and (iv) the action taken by the Board of Directors authorizing the
execution, delivery and performance of this Agreement, the Note, the Warrants
and the other Loan Documents to which the Borrower or any of the Guarantors is a
party;
(h) a certificate of insurance evidencing, of all insurance
required by Section 5.13 showing the insurer, the face amount and the nature of
coverage, and the Lender as a loss payee (or beneficiary, as the case may be)
under each policy then in force; and
(i) all mortgages and security interests securing the
Borrower's obligations hereunder shall be duly perfected and validly recorded.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
Section 4.1. Corporate Existence and Power. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to transact business
in every jurisdiction where, by the nature of its business, such qualification
is necessary, except where the failure to qualify could not reasonably be
expected to have or cause a Material Adverse Effect, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except where the failure to
have any license, authorization, consent or approval could not reasonably be
expected to have or cause a Material Adverse Effect.
Section 4.2. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Note, the Warrants and the other Loan Documents delivered as of
the Closing Date (i) are within the Borrower's corporate powers, (ii) have been
duly authorized by all necessary corporate action, (iii) require no action by or
in respect of or filing with, any governmental body, agency or official, (iv) do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or by-laws of the Borrower
or of any agreement, judgment, injunction, order, decree or other material
instrument binding upon the Borrower or any Guarantor, and (v) do not result in
the creation or imposition of any Lien on any asset of the Borrower or any
Guarantor other than Liens created or imposed pursuant to the Loan Documents.
Section 4.3. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower enforceable in accordance with its terms, the
Note, the Warrants and the other Loan Documents, when executed and delivered in
accordance with this Agreement, will constitute valid and binding obligations of
the Borrower enforceable in accordance with their respective terms; provided
that the enforceability hereof and thereof is subject in each case to general
12
17
principles of equity and to bankruptcy, insolvency and similar laws affecting
the enforcement of creditors' rights generally.
Section 4.4. Financial Information. The consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of January 1, 1997, and the
related consolidated statements of operations, shareholders' equity and cash
flows for the Fiscal Year then ended, reported on by KPMG Peat Marwick, LLP and
the consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
of March 26, 1997, and the related consolidated statements of operations and
cash flows for the Fiscal Quarter then ended, copies of which have been
delivered Lender, fairly present, in conformity with GAAP, the consolidated
financial position of the Borrower and its Consolidated Subsidiaries as of such
dates and their consolidated results of operations and cash flows for such
periods stated. Since January 1, 1997 and excepted as disclosed in Schedule 4.4
attached hereto, there has been no event, act, condition or occurrence having a
Material Adverse Effect.
Section 4.5. No Litigation. Except as disclosed as Schedule 4.5, there
is no action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which could
reasonably be expected to have or cause a Material Adverse Effect.
Section 4.6. Compliance with ERISA. The Borrower and each member of the
Controlled Group have fulfilled their obligations in all material respects under
the minimum funding standards of ERISA and the Code with respect to each Plan
and are in compliance in all material respects with the presently applicable
provisions of ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA. Neither the Borrower nor any member of
the Controlled Group is or ever has been obligated to contribute to any
Multiemployer Plan.
Section 4.7. Compliance with Laws; Payment of Taxes. The Borrower and
its Consolidated Subsidiaries are in compliance with all applicable laws,
regulations and similar requirements of governmental authorities, except where
such compliance is being contested in good faith through appropriate proceedings
and except where the failure to comply could not reasonably be expected to have
or cause a Material Adverse Effect. There have been filed on behalf of the
Borrower and its Consolidated Subsidiaries all Federal and state income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of the Borrower or any Consolidated Subsidiary have been paid. There
have been filed on behalf of the Borrower and its Consolidated Subsidiaries all
local income, excise, property and other tax returns that are required to be
filed by them and all taxes due pursuant to the returns or any assessment
received by Borrower or any Consolidated Subsidiary have been paid. The charges,
accruals and reserves on the books of the Borrower and its Consolidated
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate, except for any changes in taxes which are
imposed retroactively.
Section 4.8. No Subsidiaries. The Borrower has no Subsidiaries.
Section 4.9. Investment Company Act. Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
13
18
Section 4.10. Public Utility Holding Company Act. Neither the Borrower
nor any of its Consolidated Subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935, as amended.
Section 4.11. Ownership of Property; Liens. Each of the Borrower and
its Consolidated Subsidiaries has title to its properties sufficient for the
conduct of its business, and none of such property is subject to any Lien except
as permitted in Section 5.7.
Section 4.12. No Default. Borrower is not in default under or with
respect to any agreement, instrument or undertaking to which it is a party or by
which it or any of its property is bound which could have or cause a Material
Adverse Effect.
Section 4.13. Full Disclosure. All written information heretofore
furnished by the Borrower to the Lender for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Borrower to Lender will be, true,
accurate and complete in every material respect or based on reasonable estimates
on the date as of which such information is stated or certified. The Borrower
has disclosed to the Lenders in writing any and all facts which could have or
cause a Material Adverse Effect.
Section 4.14. Environmental Matters.
(a) Borrower is not subject to any Environmental Liability
which could have or cause a Material Adverse Effect as the Environmental
Liability becomes due and the Borrower has not been designated as a potentially
responsible party under CERCLA or under any state statute similar to CERCLA.
None of the Properties has been identified on any current or proposed (i)
National Priorities List under 40 C.F.R. ss. 300, (ii) CERCLIS list or (iii) any
list arising from a state statute similar to CERCLA.
(b) No Hazardous Materials are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties except in material compliance with Environmental Requirements. No
Hazardous Materials are present at, on, in or under the Properties, or, to the
best of the knowledge of the Borrower, at or from any adjacent site or facility
(except for Hazardous Materials, such as cleaning solvents, pesticides and other
materials used, produced, manufactured, processed, treated, recycled, generated,
stored, disposed of, managed, or otherwise handled in minimal amounts in the
ordinary course of business in compliance with all applicable Environmental
Requirements) in such quantities that the cost to monitor, investigate, and/or
remediate the Hazardous Materials in compliance with Environmental Requirements
could not reasonably be expected to have or cause a Material Adverse Effect.
(c) The Borrower in all material respects is in compliance
with all Environmental Requirements in connection with the operation of the
Properties and the Borrower's businesses.
Section 4.15. Capital Stock. All Capital Stock, debentures, bonds,
notes and all other securities of the Borrower presently issued and outstanding
are validly and properly issued in
14
19
accordance with all applicable laws, including but not limited to, the "Blue
Sky" laws of all applicable states and the federal securities laws.
Section 4.16. Margin Stock. The Borrower is not engaged principally, or
as one of its important activities, in the business of purchasing or carrying
any Margin Stock, and no part of the proceeds of 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, or be used for any purpose which
violates, or which is inconsistent with, the provisions of Regulation X.
Section 4.17. Insolvency. After giving effect to the execution and
delivery of this Agreement, the Note and the other Loan Documents, the Borrower
will not be "insolvent," within the meaning of such term as defined in ss. 101
of Title 11 of the United States Code or Section 2 of the Uniform Fraudulent
Transfer Act, or any other applicable state law pertaining to fraudulent
transfers, as amended from time to time, or be unable to pay its debts generally
as such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
15
20
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any amount payable
hereunder or under the Note remains unpaid:
Section 5.1. Information.
(a) The Borrower will deliver to the Lender:
(i) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of
the end of such Fiscal Year and the related consolidated
statements of operations, stockholders' equity and cash flows
for such Fiscal Year, setting forth in each case in
comparative form the figures for the previous fiscal year, all
certified by independent public accountants of nationally
recognized standing, with such certification to be free of
exceptions and qualifications not acceptable to the Lender;
(ii) as soon as available and in any event within 45 days
after the end of each of the first three Fiscal Quarters of
each Fiscal Year, a consolidated balance sheet of the Borrower
and its Consolidated Subsidiaries as of the end of such Fiscal
Quarter and the related statements of operations and
statements of cash flows for such Fiscal Quarter and for the
portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the
corresponding portion of the previous Fiscal Year, all
certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the
Borrower, except to the extent that interim financial
statements on Form 10-Q do not require footnotes and other
disclosures that would otherwise be required by GAAP;
(iii) simultaneously with the delivery of each set of
financial statements referred to in paragraphs (i) and (ii)
above, a certificate (a "Compliance Certificate") of the chief
financial officer stating whether any Default exists on the
date of such certificate and, if any Default then exists,
setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(iv) within two (2) Domestic Business Days after the
Borrower has knowledge of the occurrence of any Default, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
16
21
(v) promptly upon the mailing thereof to the stockholders
of the Borrower generally, copies of all financial statements,
reports and proxy statements so mailed; and
(vi) promptly upon the filing thereof, copies of all
registration statements, proxy statements, and annual,
quarterly or other reports and other information and documents
which the Borrower shall have filed with the Securities and
Exchange Commission.
(b) Upon the request of the Lender, the Borrower will deliver
to the Lender:
(i) if and when any member of the Controlled Group (A)
gives or is required to give notice to the PBGC of any
"reportable event" (as defined in Section 4043 of ERISA) with
respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy
of the notice of such reportable event given or required to be
given to the PBGC; (B) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, a copy of such
notice; or (C) receives notice from the PBGC under Title IV of
ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice; and
(ii) as soon as available and in any event within 25 days
after the end of each of the first 12 Reporting Periods of
each Fiscal Year, a consolidated statement of income and
balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Reporting Period and for
the portion of the Fiscal Year ended at the end of such
Reporting Period, setting forth in each case in comparative
form the figures for the corresponding Reporting Period and
the corresponding portion of the previous Fiscal Year, all
certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief
financial officer or the chief accounting officer of the
Borrower, except to the extent that interim financial
statements do not require footnotes and that such financial
statements are subject to normal year-end adjustments;
(iii) promptly upon receipt or obtaining knowledge
thereof, any and all bona fide offers or expressions of
interest (whether verbal or written, solicited or unsolicited)
to merge with or to acquire all or any part of the assets or
capital stock of the Borrower;
(iv) within 25 days after the end of each Reporting
Period: (A) a variance report which reconciles the performance
of the Borrower for the immediately preceding Reporting Period
to the projected budget of the Borrower for such period; (B)
an accounts payable schedule for the Borrower; (C) a written
schedule of the revenues, profit contributions and other
operating and financial information with respect to each
Stacey's Restaurant, on an individual and regional basis; and
(D) a written summary of the Borrower's advertising and
promotional activities, including a summary of amounts
expended in connection therewith and a cost/benefit analysis
of such expenditures
17
22
(v) within five days after the end of each calendar week,
written weekly sales reports with respect to each Stacey's
Restaurant, on an individual and regional basis; and
(vi) from time to time such additional information
regarding the financial position or business of the Borrower
and its Subsidiaries as may be reasonably requested.
Section 5.2. Inspection of Property, Books and Records. The Borrower
will (i) keep, and cause each Consolidated Subsidiary to keep, proper books of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and cause each Wholly Owned Subsidiary to
permit, representatives of Lender, at the Borrower's expense, to visit and
inspect any of their respective properties, to examine and make abstracts from
any of their respective books and records and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants. The Borrower agrees to cooperate and assist in
such visits and inspections, in each case at such reasonable times and as often
as may reasonably be desired.
Section 5.3. Restricted Payments. The Borrower will not declare or make
any Restricted Payments.
Section 5.4. Limitation on Indebtedness. Neither the Borrower nor any
of its Subsidiaries will create, incur, assume, or become, be or remain liable
in any manner in respect of, or allow to exist, any Indebtedness (which term
shall include: all indebtedness, obligations and liabilities which in accordance
with generally accepted accounting principles would be reflected on the balance
sheet of the Borrower as a liability; all indebtedness, obligations and
liabilities, whether or not assumed by Borrower or any Subsidiary, secured by
any mortgage, pledge or lien existing on property owned by the Borrower or any
Subsidiary; and all amounts representing rental payments which, in accordance
with generally accepted accounting principles, would be classified as a
liability on its balance sheet), except for:
(a) the Note and any other obligations owed to the Lender
under this Agreement or otherwise;
(b) Indebtedness of the Borrower existing as of the date of
this Agreement which is specifically disclosed in Schedule 5.5 attached hereto;
(c) Indebtedness representing trade debt, wages, employee
benefits, advance payments on sales contracts and other indebtedness incurred in
the ordinary course of business;
(d) Indebtedness existing as of the date of this Agreement
secured by liens permitted by subsection (a) of Section 5.7;
(e) Liabilities for taxes, assessments, governmental charges,
liens or claims described in Section 5.12 hereof to the extent that payment
thereof is not required by such Section 5.12; and
18
23
(f) Indebtedness in respect of final judgments for the payment
of money not in excess of $10,000 in the aggregate at any time outstanding
(excluding sums covered by insurance) remaining unsatisfied and in effect for
any period of less than thirty (30) days or in respect of which a stay of
execution shall have been obtained pending an appeal or proceeding for review.
Section 5.5. Loans or Advances. Neither the Borrower nor any Guarantor
shall make loans or advances to any Person except (without duplication): (a)
loans or advances to employees not exceeding $5,000 in the aggregate principal
amount outstanding at any time, in each case made in the ordinary course of
business and consistent with practices existing on the Closing Date; (b)
deposits required by government agencies or public utilities; (c) loans,
advances or monetary capital contributions from the Borrower or a Guarantor to
any Guarantor, or from any Guarantor to the Borrower; (d) loans in existence on
the Closing Date not exceeding a total aggregate principal amount of outstanding
as described on Schedule 5.5 attached hereto, which are evidenced by legally
enforceable promissory notes and subject to the Lender's perfected Liens; and
(e) loans or advances consented to by the Lender in connection with asset sales
under Section 5.10 or loans or advances in connection with asset sales which do
not require the consent of the Lender; provided that after giving effect to the
making of any loans, advances or deposits permitted by this Section, the
Borrower will be in full compliance with all the provisions of this Agreement.
Section 5.6. Investments. Neither the Borrower nor any Guarantor shall
make Investments in any Person except as permitted by Section 5.5 and except
Investments (i) in direct obligations of the United States Government maturing
within one year, (ii) in certificates of deposit issued by a commercial bank
whose long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor's Corporation and Aa or the equivalent thereof by
▇▇▇▇▇'▇ Investors Service, Inc., (iii) in commercial paper rated A1 or the
equivalent thereof by Standard & Poor's Corporation or P1 or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in either case maturing within 6
months after the date of acquisition, and (iv) in tender bonds the payment of
the principal of and interest on which is fully supported by a letter of credit
issued by a United States bank whose long-term certificates of deposit are rated
at least AA or the equivalent thereof by Standard & Poor's Corporation and Aa or
the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc.
Section 5.7. Negative Pledge. Neither the Borrower nor any Wholly Owned
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement and
identified on Schedule 5.7;
(b) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring or
constructing such asset (so long as the asset so acquired or constructed
constitutes a capital expenditure permitted hereunder);
(c) Liens securing Indebtedness owing by any Subsidiary to the
Borrower;
(d) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing paragraphs of this Section,
19
24
provided that (i) such Indebtedness is not secured by any additional assets, and
(ii) the amount of such Indebtedness secured by any such Lien is not increased
or, if increased, the excess of the amount of the Indebtedness secured by any
such lien over the amount of the Indebtedness so refinanced extended, renewed,
or refunded shall be tendered to the Lender as a prepayment of the Loan;
(e) Liens incidental to the conduct of its business or the
ownership of its assets which (i) do not secure Indebtedness and (ii) do not in
the aggregate materially detract from the value of its assets or materially
impair the use thereof in the operation of its business;
(f) Liens in favor of the Lenders created under the Loan
Documents; and
(g) Liens incurred by Borrower in the ordinary course of
business for items not past due and payable, including mechanics' and
materialmen's liens and deposits and charges for workers' compensation and liens
for taxes and assessments not past due and payable.
Section 5.8. Maintenance of Existence. The Borrower shall, and shall
cause each Subsidiary to, maintain its corporate existence and carry on its
business in substantially the same manner and in substantially the same fields
as such business is now carried on and maintained.
Section 5.9. Dissolution. Neither the Borrower nor any of its Wholly
Owned Subsidiaries shall suffer or permit dissolution or liquidation either in
whole or in part or redeem or retire any shares of its own stock or that of any
Wholly Owned Subsidiary, except through corporate reorganization to the extent
permitted by Section 5.12.
Section 5.10. Consolidations, Mergers and Sales of Assets. The Borrower
will not, nor will it permit any Consolidated Subsidiary to, consolidate or
merge with or into, or sell, lease or otherwise transfer all or any substantial
part of its assets to, any other Person, or discontinue or eliminate any
business line or segment; provided, however, that if no Default has occurred and
is continuing (i) the Borrower may merge with another Person if (A) such Person
was organized under the laws of the United States of America or one of its
states, (B) the Borrower is the corporation surviving such merger, and (C)
immediately after giving effect to such merger, no Default shall have occurred
and be continuing, and (ii) solvent Subsidiaries of the Borrower may merge with
one another or, if the Borrower is the surviving corporation, the Borrower.
Section 5.11. Use of Proceeds. The proceeds of the Loan shall be used
by Borrower for the purpose of remodeling Stacey's Restaurants or for the costs
of converting Stacey's Restaurants to any regional buffet restaurant concept
which is approved by Lender, and for general working capital purposes. No
portion of the proceeds of the Loan will be used by the Borrower or any
Subsidiary (i) in connection with, whether directly or indirectly, any tender
offer for, or other acquisition of, stock of any corporation with a view towards
obtaining control of such other corporation, (ii) directly or indirectly, for
the purpose, whether immediate, incidental or ultimate, of purchasing or
carrying any Margin Stock, or (iii) for any purpose in violation of any
applicable law or regulation.
Section 5.12. Compliance with Laws; Payment of Taxes; SEC Filings. The
Borrower will, and will cause each of its Wholly Owned Subsidiaries and each
member of the Controlled Group to, comply with applicable laws (including but
not limited to ERISA), regulations and
20
25
similar requirements of governmental authorities (including but not limited to
PBGC) in all material respects, except where the necessity of such compliance is
being contested in good faith through appropriate proceedings. The Borrower
will, and will cause each of its Wholly Owned Subsidiaries to, pay promptly
before past due all taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which, if unpaid, might become or remain a
lien against the property of the Borrower or any Wholly Owned Subsidiary, except
liabilities being contested in good faith and against which, if requested by the
Lender, the Borrower will set up reserves in accordance with GAAP. The Borrower
will timely file all reports, statements and other information and documents
with the Securities and Exchange Commission required to be filed under, and will
otherwise comply in all respects with, applicable securities laws.
Section 5.13. Insurance. The Borrower will maintain, and will cause
each of its Wholly Owned Subsidiaries to maintain (either in the name of the
Borrower or in such Subsidiary's own name), with financially sound and reputable
insurance companies, insurance on all its property in at least such amounts and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar business,
and as required by the other Loan Documents.
Section 5.14. Change in Fiscal Year. The Borrower will not change its
Fiscal Year.
Section 5.15. Maintenance of Property. The Borrower shall, and shall
cause each Wholly Owned Subsidiary to, maintain all of its properties and assets
in good condition, repair and working order, except for ordinary wear and tear
and loss by casualty.
Section 5.16. Environmental Notices. The Borrower shall furnish to the
Lender prompt written notice of all Environmental Liabilities, pending,
threatened or anticipated Environmental Proceedings, Environmental Notices,
Environmental Judgments and Orders, and Environmental Releases at, on, in, under
or in any way affecting the Properties or any adjacent property, and all facts,
events, or conditions that could lead to any of the foregoing.
Section 5.17. Environmental Matters. The Borrower and its Wholly Owned
Subsidiaries will not, and will not permit any Third Party to, use, produce,
manufacture, process, treat, recycle, generate, store, dispose of, manage at, or
otherwise handle, or ship or transport to or from the Properties any Hazardous
Materials except for Hazardous Materials such as cleaning solvents, pesticides
and other similar materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed, managed, or otherwise handled in minimal
amounts in the ordinary course of business in compliance with all applicable
Environmental Requirements.
Section 5.18. Environmental Release. The Borrower agrees that upon the
occurrence of an Environmental Release at or on any of the Properties it will
act immediately to investigate the extent of, and to take appropriate remedial
action to eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority.
Section 5.19. Transactions with Affiliates. Neither the Borrower nor
any of its Consolidated Subsidiaries shall enter into, or be a party to (and the
Borrower shall use its best efforts to cause any other Subsidiary to not enter
into or be a party to), any transaction with any Affiliate of the Borrower or
such Subsidiary (which Affiliate is not the Borrower or a Subsidiary), except
(i) such transactions between and/or among the Borrower and its Consolidated
Subsidiaries
21
26
which are permitted by law, consistent with its past practices, in the ordinary
course of business and pursuant to reasonable terms which are no less favorable
to Borrower or such Consolidated Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate or
(ii) such transactions as are otherwise fully disclosed to the Lender and
consented to in writing in advance by the Lender.
ARTICLE VI
DEFAULTS
Section 6.1. Events of Default. If one or more of the following events
(each, a "Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of
the Loan or shall fail to pay any interest on the Loan within two (2) Domestic
Business Days after such interest shall become due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in: (i) Section 5.1 and such failure shall continue for ten (10)
Business Days after the earlier to occur of (x) written notice thereof has been
given to the Borrower by the Lender or (y) the Borrower obtains knowledge of any
such failure; or (ii) Sections 5.2, 5.3 to 5.12, inclusive, Sections 5.14 or
5.19; or
(c) the Borrower shall fail to observe or perform any covenant
or agreement contained or incorporated by reference in this Agreement (other
than those covered by paragraph (a) or (b) above) and such failure shall not
have been cured within 30 days after the earlier to occur of (i) written notice
thereof has been given to the Borrower by the Lender or (ii) the Borrower
otherwise becomes aware of any such failure; or
(d) any representation, warranty, certification or statement
made by the Borrower in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect or misleading in any material respect when made (or
deemed made); or
(e) the Borrower or any Consolidated Subsidiary shall fail to
make any payment in respect of Indebtedness outstanding in an aggregate amount
in excess of $500,000 (other than the Notes) when due or within any applicable
grace period; or
(f) any event or condition shall occur which results in the
acceleration of the maturity of Indebtedness of the Borrower or any Consolidated
Subsidiary outstanding in an aggregate amount in excess of $500,000 (including,
without limitation, any required mandatory prepayment or "put" of such
Indebtedness to the Borrower or any Consolidated Subsidiary) or enables (or,
with the giving of notice or lapse of time or both, would enable) the holders of
such Indebtedness or any Person acting on such holders' behalf to accelerate the
maturity thereof (including, without limitation, any required mandatory
prepayment or "put" of such Indebtedness to the Borrower or any Consolidated
Subsidiary); or
22
27
(g) the Borrower or any Consolidated Subsidiary shall commence
a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay
its debts as they become due, or shall take any corporate action to authorize
any of the foregoing; or
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or any Consolidated Subsidiary seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Borrower
or any Consolidated Subsidiary under the federal bankruptcy laws as now or
hereafter in effect; or
(i) the Borrower or any member of the Controlled Group shall
fail to pay when due any material amount which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or the Borrower or any other member of the Controlled Group shall
enter into, contribute or be obligated to contribute to, terminate or incur any
withdrawal liability with respect to, a Multiemployer Plan;
(j) one or more final, nonappealable judgments or orders for
the payment of money in an aggregate amount in excess of $250,000 shall be
rendered against the Borrower or any Consolidated Subsidiary and such judgment
or order shall continue unsatisfied and unstayed for a period of 30 days; or
(k) a federal tax lien for a claimed amount in excess of
$100,000 shall be filed against the Borrower or any Consolidated Subsidiary
under Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Consolidated Subsidiary under Section 4068 of ERISA and in
either case such lien shall remain undischarged for a period of 25 days after
the date of filing; or
(l) except as a result of the election of designees of Lender
to Borrower's Board of Directors on the Closing Date pursuant to this Agreement,
as of any date a majority of the Board of Directors of the Borrower consists of
individuals who were not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or nominated to become
23
28
directors by the Board of Directors of the Borrower of which a majority
consisted of individuals described in clause (A), or (C) selected or nominated
to become directors by the Board of Directors of the Borrower of which a
majority consisted of individuals described in clause (A) and individuals
described in clause (B); or
(m) (i) any default by the Borrower or any of the Guarantors
under any of the Loan Documents shall exist after the satisfaction of any
applicable grace, notice or cure periods, if any, (ii) any Loan Documents
(including, without limitation, the Guaranty) shall cease to be enforceable, or
(iii) any Guarantor or the Borrower shall assert that any Loan Document
(including, without limitation, the Guaranty) shall cease to be enforceable
then, and in every such event (an "Event of Default"), the Lender may by notice
to the Borrower declare the Note (together with accrued interest thereon) to be,
and the Note shall thereupon become, immediately due and payable without
presentment, demand, protest or additional notice of any kind, all of which are
hereby waived by the Borrower, together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default; provided that if any Event of Default specified in paragraph (g) or
(h) above occurs with respect to the Borrower, without any notice to the
Borrower or any other act by the Lender, the Notes (together with accrued
interest thereon) shall become immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower together with interest thereon at the Default Rate accruing on the
principal amount thereof from and after the date of such Event of Default.
Notwithstanding the foregoing, the Lender shall have available to it all other
remedies at law or equity, and may any one or all of them.
ARTICLE VII
MISCELLANEOUS
Section 7.1. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including bank wire, telecopier or
similar writing) and shall be given to such party at its address or telecopier
number set forth on the signature pages hereof or such other address or
telecopier number as such party may hereafter specify for the purpose by notice
to each other party. Each such notice, request or other communication shall be
effective (i) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid or (ii) if
given by any other means, when delivered at the address specified in this
Section.
Section 7.2. No Waivers. No failure or delay by the Lender in
exercising any right, power or privilege hereunder or under the Note or other
Loan Document shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 7.3. Expenses; Documentary Taxes. If a Default occurs, the
Borrower shall pay or reimburse lender, as the case may be, for all
out-of-pocket expenses incurred by the Lender, including fees and disbursements
of counsel, in connection with such Default and collection and other enforcement
proceedings resulting therefrom, including out-of-pocket expenses incurred in
enforcing this Agreement and the other Loan Documents. The Borrower shall
indemnify the
24
29
Lender against any transfer taxes, documentary taxes, assessments or charges
made by any Authority by reason of the execution and delivery of this Agreement
or the other Loan Documents.
Section 7.4. Indemnification. The Borrower shall indemnify the Lender
and its directors, officers, partners, trustees, beneficiaries, controlling
persons, shareholders, employees and agents from, and hold each of them harmless
against, any and all losses, liabilities, claims or damages to which any of them
may become subject, insofar as such losses, liabilities, claims or damages arise
out of or result from (i) any actual or proposed use by the Borrower of the
proceeds of any extension of credit by Lender hereunder, or (ii) breach by the
Borrower of this Agreement (including, without limitation, representations,
warranties and covenants relating to environmental matters) or any other Loan
Document, or from any investigation, litigation (including, without limitation,
any actions taken by Lender to enforce this Agreement or any of the other Loan
Documents) or other proceeding (including, without limitation, any threatened
investigation or proceeding) relating to the foregoing, and the Borrower shall
reimburse Lender, and its directors, officers, employees and agents, upon demand
for any expenses (including, without limitation, legal fees) incurred in
connection with any such investigation or proceeding; but excluding any such
losses, liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
Section 7.5. Amendments and Waivers. Any provision of this Agreement,
the Note or any other Loan Documents may be amended or waived if, but only if,
such amendment or waiver is in writing and is signed by the Borrower and the
Lender. The Borrower will not solicit, request or negotiate for or with respect
to any proposed waiver or amendment of any of the provisions of this Agreement
unless Lender shall be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower with
sufficient information to enable it to make an informed decision with respect
thereto.
25
30
Section 7.6. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided that the Borrower may not assign or otherwise transfer any of
its rights under this Agreement.
(b) Lender (or successor or assignee of any Lender) may at any
time sell to one or more Affiliates (each a "Participant") participating
interests in Loan owing to such Lender, any Note held by such Lender, or any
other interest of such Lender hereunder. In the event of any such sale by the
Lender of a participating interest to a Participant, Lender's obligations under
this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Note for all purposes under this Agreement, and the Borrower shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. In no event shall a Lender
that sells a participation be obligated to the Participant to take or refrain
from taking any action hereunder except that such Lender may agree that it will
not (except as provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of or interest on
the related loan or loans, (ii) the change of the amount of any principal,
interest or fees due on any date fixed for the payment thereof with respect to
the related loan or loans, (iii) the change of the principal of the related loan
or loans, (iv) any change in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) fee is payable
hereunder from the rate at which the Participant is entitled to receive interest
or fee (as the case may be) in respect of such participation, (v) the release or
substitution of all or any substantial part of the collateral (if any) held as
security for the Borrower's obligations hereunder, or (vi) the release of any
Guarantee given to support payment of the Borrower's obligations hereunder. Each
Lender selling a participating interest in any Loan, Note, or other interest
under this Agreement shall provide the Borrower with written notification
stating that such sale has occurred and identifying the Participant and the
interest purchased by such Participant.
(c) Lender or assignee of any Lender (in either case, a
"Transferor") may at any time assign to one or more Affiliates of Lender (each
an "Assignee") all, or a proportionate part of all, of its rights and
obligations under this Agreement, the Note and the other Loan Documents and such
Assignee shall assume all rights and obligations of the Transferor hereunder
pursuant to an agreement executed by such Assignee and such Transferor in form
and substance satisfactory to the Transferor (an "Assignment Agreement"). Upon
(a) execution of the Assignment Agreement by and such Transferor, such Assignee
and (b) payment by such Assignee to and Transferor of an amount equal to the
purchase price agreed between such Transferor and such Assignee, and (c) payment
of a such Assignee shall for all purposes be a Lender party to this Agreement
and shall have all the rights and obligations of a Lender under this Agreement
to the same extent as if it were an original party hereto with a pro rata share
as set forth in the Assignment Agreement, and the Transferor shall be released
from its obligations hereunder to a corresponding extent, and no further consent
or action by the Borrower, or the Lender shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
Transferor, and the Borrower shall make appropriate arrangements so that, if
required, a new Note (or Notes) is (are) issued to such Assignee.
26
31
(d) Subject to the provisions of Section 7.7, the Borrower
authorizes each Lender to disclose to any Participant, Assignee or other
transferee (each a "Transferee") and any prospective Transferee who has agreed
in writing to be bound by Section 7.7 any and all financial information in such
Lender's possession concerning the Borrower which has been delivered to such
Lender by the Borrower pursuant to this Agreement or which has been delivered to
such Lender by the Borrower in connection with such Lender's credit evaluation
prior to entering into this Agreement.
(e) Anything in this Section 7.6 to the contrary
notwithstanding, any Lender may assign and pledge all or any portion of the Loan
and/or obligations owing to it to as collateral security, provided that any
payment in respect of such assigned Loan and/or obligations made by the Borrower
to the assigning and/or pledging Lender in accordance with the terms of this
Agreement shall satisfy the Borrower's obligations hereunder in respect of such
assigned Loan and/or obligations to the extent of such payment. No such
assignment shall release the assigning and/or pledging Lender from its
obligations hereunder.
Section 7.7. Confidentiality. Lender agrees to keep any information
delivered or made available by the Borrower to it which is clearly indicated to
be confidential information, confidential from anyone other than persons
employed or retained by Lender who are or are expected to become engaged in
evaluating, approving, structuring or administering the Borrower's obligations
hereunder provided, that, such individuals shall be subject to the agreement
contained in this Section 7.7; provided, however that nothing herein shall
prevent Lender from disclosing such information (i) to any other Lender, (ii)
upon the order of any court or administrative agency after notice to the
Borrower, (iii) upon the request or demand of any regulatory agency or authority
having jurisdiction over such Lender after notice to the Borrower, (iv) which
has been publicly disclosed by Borrower, (v) to the extent reasonably required
in connection with any litigation to which the Lender or its Affiliates may be a
party, (vi) to the extent reasonably required in connection with the exercise of
any remedy hereunder, (vii) to Lender's legal counsel and independent auditors
and (viii) to any actual or proposed Participant, Assignee or other Transferee
of all or part of its rights hereunder, provided that such proposed Participant,
Assignee or other Transferee agrees in writing to be bound by this Section.
Section 7.8. California Law. This Agreement and each of the loan
documents shall be construed in accordance with and governed by the law of the
State of California.
Section 7.9. Severability. In case any one or more of the provisions
contained in this Agreement, the Note or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
Section 7.10. Interest. In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by applicable law, and in the event any such payment is inadvertently made to
Lender by the Borrower or inadvertently received by Lender, then such excess sum
shall be credited as a payment of principal, unless the Borrower shall notify
such Lender in writing that it elects to have such excess sum returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Lender not receive, directly or
27
32
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under applicable law.
Section 7.11. Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
Section 7.12. Waiver of Jury Trial; Consent to Jurisdiction. Each of
the Borrower and the Lender irrevocably (a) waives any and all right to trial by
jury in any legal proceeding arising out of this Agreement, any of the other
Loan Documents, or any of the transactions contemplated hereby or thereby, (b)
submits to the nonexclusive personal jurisdiction in the State of California,
the courts thereof and the United States District Courts sitting therein, for
the enforcement of this Agreement, the Note and the other Loan Documents, (c)
waives any and all personal rights under the law of any jurisdiction to object
on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of California for the purpose of
litigation to enforce this Agreement, the Notes or the other Loan Documents, and
(d) agrees that service of process may be made upon it in the manner prescribed
in Section 7.1 for the giving of notice to the Borrower. Nothing herein
contained, however, shall prevent the Lender from bringing any action or
exercising any rights against any security and against the Borrower personally,
and against any assets of the Borrower, within any other state or jurisdiction.
Section 7.13. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
28
33
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
STACEY'S BUFFET, INC
By:
------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
---------------------
Telecopier number:
-------------
Telephone number:
--------------
STAR BUFFET, INC.,
By:
------------------------------------
Name:
Tile:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
---------------------
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
29