Exhibit 10.35
OMNIBUS AGREEMENT
THIS OMNIBUS AGREEMENT (the "Agreement") made this day 26th of October
2001 by and between FINOVA Capital Corporation having an office at ▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ("FINOVA") and Roadhouse having its principal
place of business at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
("Roadhouse").
WHEREAS, pursuant to that certain commitment letter dated June 4, 1997,
as same has been amended, FINOVA made a loan to Roadhouse in the principal sum
of $15,000,000.00 (the "1997 Loan") for the purpose of refinancing existing debt
and providing expansion capital in connection with nine (9) roadhouse grill
franchise restaurants (each individually, a "Restaurant") located in Florida
(the "Florida Restaurants") and three (3) Restaurants located in South Carolina
(the "South Carolina Restaurants") as set forth on SCHEDULE I annexed hereto;
and
WHEREAS, the 1997 Loan is evidenced by a loan and security agreement
executed by and between FINOVA and Roadhouse (the "1997 Loan and Security
Agreement") and a promissory note dated September 12, 1997 in the principal
amount of $15,000,000.00 executed by Roadhouse in favor of FINOVA (the "1997
Note"); which 1997 Note is secured by twelve (12) mortgages and security
agreements executed by Roadhouse in favor of FINOVA (as the same may have been
amended from time to time, the "1997 Mortgages") as set forth on SCHEDULE II
annexed hereto; and
WHEREAS, pursuant to that certain commitment letter dated January 8,
1998, FINOVA agreed to make the following loans to Roadhouse: (i) permanent
financing in the maximum amount of $5,000,000,00 to provide financing for new
Restaurants ("Original Facility A"); (ii) equipment financing in the maximum
amount of $2,000,000.00 ("Original Facility B"); (iii) a revolving line of
credit in the maximum amount of $3,000,000.00 to be utilized for general
corporate purposes ("Facility C"); and a permanent loan in the maximum amount of
$5,000,000.00 to refinance the existing principal balance under a secured note
payable to Berjaya Group Limited, the majority stockholder of Roadhouse
("Facility D"); and
WHEREAS, FACILITY C is evidenced by a loan and security agreement
executed by and between FINOVA and Roadhouse (the "1998 Revolving Loan and
Security Agreement") and a revolving credit promissory note dated June 2, 1998
in the principal amount of $3,000,000,00 (as the same may have been amended from
time to time, the "1998 Revolving Note"); which 1998 Revolving Note is secured
by nine (9) second-priority mortgages and security agreements executed by
Roadhouse in favor of FINOVA covering the Florida Restaurants (as the same may
have been amended from time to time, the "1998 Mortgages") as set forth on
SCHEDULE III annexed hereto; and
WHEREAS, Facility D is evidenced by a loan and security agreement
executed by and between FINOVA and Roadhouse (the "1998 Loan and Security
Agreement") and a promissory note dated March 25, 1998 in the principal amount
of $2,880,000.00 (the "1998 Note"); which 1998 Note is secured by furniture,
fixtures and equipment located or used in connection with the Restaurants set
forth on SCHEDULE IV annexed hereto (the "Facility D Restaurants") and
perfected by UCC-1 Financing Statements; and
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WHEREAS, FINOVA and Roadhouse did not consummate the transactions
contemplated by Original Facility A and Original Facility B and Roadhouse did
not request any advances under Facility C; and
WHEREAS, pursuant to that certain commitment letter dated October 4,
1999, FINOVA agreed to make the following loans to Roadhouse: (i) a revolving
line of credit in the maximum amount of $5,000,000.00 to provide working
capital necessary for corporate purposes ("Facility A"); and a loan in the
maximum amount of $18,000,000.00 to provide permanent financing for future
Restaurants ("Facility B"); and
WHEREAS, Facility A is evidenced by a revolving loan agreement executed
by and between FINOVA and Roadhouse (as amended by that certain amendment to
revolving loan agreement dated as of April 12, 2001, the "Revolving Loan
Agreement") and a promissory note dated October 22, 1999 in the principal amount
of $5,000,000.00 (as the same may have been amended from time to time, the
"Revolving Note"); which Revolving Note is secured by nine (9) modification of
mortgage and security agreements covering the Florida Restaurants as set forth
on SCHEDULE V annexed hereto (collectively, the "Modifications of Mortgages"),
and three (3) leasehold mortgage and security agreements and one (1) mortgage
and security agreement as set forth on SCHEDULE VI annexed hereto (the "Facility
A Mortgages") covering the Restaurants set forth on SCHEDULE VII annexed hereto
(the "Facility A Restaurants"); and
WHEREAS, Facility B is evidenced by those certain promissory notes
executed by Roadhouse in favor of FINOVA as set forth on SCHEDULE VIII annexed
hereto (the "Facility 13 Notes"); which Facility B Notes are secured by eight
(8) leasehold mortgage and security agreements set forth on SCHEDULE IX annexed
hereto (collectively, the "Facility B Mortgages") covering those certain
Restaurants set forth on SCHEDULE X annexed hereto (the "Facility B
Restaurants");
WHEREAS, Roadhouse acknowledges and agrees that the current aggregate
outstanding principal sum of the Term Notes (exclusive of late fees and
interest) is $23,692,966.52 as of October 25, 2001, as more specifically set
forth on SCHEDULE XI attached hereto and that the outstanding principal sum due
under the Revolving Note is $5,000,000.00;
WHEREAS, by failing to make its regularly scheduled installments of
principal and interest to FINOVA due on August 1, 2001 and September 1, 2001;
and by failing to meet the required Cash Flow Coverage Ratio (the "Known
Defaults"), Roadhouse is presently in default under the Loan Documents (as such
term is defined herein);
WHEREAS, Roadhouse has requested that FINOVA (i) waive numerous
defaults under the various Loan Documents; (ii) restructure payments of
principal and interest, including the capitalization of interest; and (iii)
forbearance from exercising FINOVA's rights under the various notes and
mortgages, including the commencement of foreclosure proceedings;
WHEREAS, FINOVA is willing to consent to the various requests made by
Roadhouse provided that the following amendments are made to the Loan Documents
set forth below.
NOW THEREFORE, in consideration of the foregoing, and to induce FINOVA
to waive the Known Defaults, the parties hereto hereby agree as follows:
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1. DEFINITIONS: As used in this Agreement, the following terms
shall have the following respective meanings:
1.1 LOANS shall mean, collectively, the 1997 Loan,
Facility A, Facility B, Facility C and Facility D;
1.2 LOAN AGREEMENTS shall mean, collectively, the Term
Loan Agreements and the Revolving Loan Agreements as
same may have been amended or restated;
1.3 LOAN DOCUMENTS shall mean, collectively, the 1997
Loan and Security Agreement, the 1997 Note, the 1997
Mortgages, the 1998 Mortgages, the 1998 Loan and
Security Agreement, the 1998 Note, the Revolving Loan
Agreement, the Revolving Note, the Modifications of
Mortgages, the Facility A Mortgages, the Facility B
Notes and the Facility B Mortgages, together with all
related instruments and documents;
1.4 MORTGAGES shall mean, collectively, the 1997
Mortgages, the 1998 Mortgages, the Facility A
Mortgages and the Facility B Mortgages as same may
have been amended or restated;
1.5 Notes shall mean, collectively, the Term Notes and
the Revolving Note as same may have been amended or
restated;
1.6 RESTAURANTS shall mean, collectively, the Florida
Restaurants, the South Carolina Restaurants, the
Facility A Restaurants, the Facility B Restaurants
and the Facility D Restaurants;
1.7 REVOLVING LOAN shall mean Facility A;
1.8 TERM LOANS shall mean, collectively, the 1997 Loan,
Facility B and Facility D;
1.9 TERM LOAN AGREEMENTS shall mean, collectively, the
1997 Loan and Security Agreement and the 1998 Loan
and Security Agreement;
1.10 Term Notes shall mean the 1997 Note, the 1998 Note
and the Facility B Notes;
1.11 Capitalized terms used herein and not defined herein
shall have their respective meaning set forth in the
Loan Documents.
2. Roadhouse acknowledges and agrees that Facility C has expired
and that there is no farther availability under Original
Facility A, Original Facility B, Facility A, Facility B or
Facility C.
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3. Roadhouse agrees that it has no defenses or set-offs against
FINOVA, its respective officers, directors, employees, agents
or attorneys with respect to the Loan Documents or related
instruments, agreements or documents, all of which are in full
force and effect and shall remain in full force and effect
unless and until modified or amended in writing in accordance
with their terms. Roadhouse hereby ratifies and confirms its
Obligations under the Loan Documents and related instruments,
agreements and documents and agrees that the execution and the
delivery of this Agreement does not in any way diminish or
invalidate any of its Obligations thereunder except as
expressly modified herein.
4. AMENDMENTS TO REVOLVING LOAN AGREEMENT. The Revolving Loan
Agreement is hereby amended as follows:
4.1 The "Interest Rate" shall be increased to eleven and
one half (11.50%) percent.
4.2 The definition of "Loan Documents" shall be modified
to include the Loan Agreements, Mortgages and Notes.
4.3 The definition of "Note" shall be modified to include
this Agreement to the extent same modifies, amends or
restates the Revolving Note.
4.4 Paragraph 2.8.2 is hereby deleted in its entirety and
is hereby replaced by the following:
"Interest After Maturity. Commencing with
the day after the principal amount of the
loan shall have become due and payable (by
acceleration or otherwise), such part of the
Loan or the entire Loan (as the case may be)
shall bear interest at the rate of fourteen
(14%) percent per annum (the "Default
Rate")."
4.5 Paragraph 5.1.1 is hereby deleted in its entirety and
is hereby replaced by the following:
"5.1.1 Annual Financial Statements, As soon
as practicable, and in any event within
ninety (90) days after the close of each
fiscal year of Borrower, Borrower shall
furnish to Lender the annual audit report
for such year, including audited statements
of income, retained earnings and changes in
financial position of Borrower for such
fiscal year, specific detail of the amount
of real property rent expense and equipment
rent expense, and the details of the amount
of the new store capital expenditures for
such fiscal year, and an audited balance
sheet of Borrower as of the close of such
fiscal year, and notes to each, all in
reasonable detail, setting forth in
comparative form the corresponding figures
for the preceding fiscal year where such
presentation is appropriate under GAAP,
certified without qualification by
independent certified public accountants of
recognized standing selected by Borrower and
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acceptable to Lender, together with (or
included in such certification) a written
statement of such accountants substantially
to the effect that (i) such accountants
examined such financial statements in
accordance with generally accepted auditing
standards and accordingly made such tests of
accounting records and such other auditing
procedures as they considered necessary in
the circumstances and (ii) in the opinion of
such accountants such financial statements
present fairly the financial position of
Borrower as of the end of such fiscal year
and the results of its operations and the
changes in its financing position for the
fiscal year then ended, in conformity with
GAAP applied on a basis consistent with that
of the preceding fiscal year (except for
changes in application in which such
accountants concur)."
4.6 Paragraph 5.1.2 is hereby deleted in its entirety and
is hereby replaced by the following:
"5.1.2 Quarterly Financial Statements.
Within forty-five (45) days after the end
of each of the first three fiscal quarters
of such fiscal year, Borrower shall furnish
to Lender internally prepared interim
financial statements and a copy of its
Form 10Q Report filed with the Securities
and Exchange Commission with respect to such
quarter."
4.7 Paragraph 5.12 is amended by adding the following to
the end thereof:
"Notwithstanding the foregoing, Borrower may
sell any of its assets provided, however
that Borrower has received the prior written
consent of FINOVA in the event that such
sale(s) exceed the aggregate sum of
$100,000.00 in any given fiscal year. In the
event that Borrower desires to sell any
assets which are security under the Loans,
and in the event that FINOVA provides its
prior written consent to such sale if
required herein, then all net proceeds of
such sale shall be paid directly to FINOVA.
In determining the not proceeds of any such
sale, the only permitted reduction to the
gross sales price would be for the expenses
incurred by the Borrower that directly
relate to such sale."
4.8 Paragraph 5.14 is hereby deleted in its entirety and
is hereby replaced with the following:
"51.4 CROSS DEFAULT. Borrower acknowledges
that (i) any Default under the terms of this
Agreement or the Note; (ii) any Event of
Default under any agreement between Borrower
and Lender; or (iii) any default under any
other obligations of Borrower in excess of
$10,000.00 howsoever created and whether now
existing or hereafter arising, including
without limitation any capital and
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operating leases, shall be deemed a default
under any of the Loan Documents or
otherwise."
4.9 Article 5 is amended by adding the following
paragraphs:
"5.15 CAPITAL EXPENDITURES. Except as set
forth on Appendix I annexed hereto and made
a part hereof, Borrower shall not make any
further capital expenditures with respect to
new stores. Notwithstanding the foregoing,
Borrower shall be permitted to incur
expenses for routine repair and maintenance
in the ordinary course of business. In the
event Borrower achieves a minimum Fixed
Charge Coverage Ratio (as hereafter defined)
of 1.25 to 1.00 for four consecutive
quarters beginning with the fourth (4th)
quarter of 2003, Borrower shall be permitted
to resume making capital expenditures with
respect to new stores.
5.16 CERTAIN OTHER COVENANTS. Borrower shall
not, without the prior written consent of
Lender:
a. Make advances, loans or extensions
of credits to, or invest in, any
other person or entity, except for
loans or cash advances to employees
in the ordinary course of business;
b. Create, incur, assume or permit to
exist any indebtedness for borrowed
money other than (i) the Secured
Debt; (ii) existing indebtedness of
Borrower in such amounts owing to
such creditors as are identified on
SCHEDULE XII attached hereto; and
(iii) indebtedness approved in
writing by Lender;
c. Guarantee or become directly or
continently liable for the
obligations of any other person or
entity except for endorsement of
instruments for deposit;
d. Except as set forth below, sell,
transfer, distribute or pay any
money or property to any Affiliate,
or invest in (by capital
contribution or otherwise) or
purchase or repurchase any stock or
obligations, or any property, of
any Affiliate, or become liable on
any guaranty of the obligations of
an Affiliate. Notwithstanding the
foregoing, and if no Event of
Default has occurred, Borrower may
pay those existing obligations to
Berjaya Group (Cayman) Limited as
previously disclosed to Lender.
4.10 Paragraph 6.1 is hereby deleted in its entirety and
is hereby replaced by the following:
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"FIXED CHARGE COVERAGE RATIO. Throughout the
Term, Borrower shall maintain a Fixed Charge
Coverage Ratio ("FCCR") at the following
levels:
Fiscal Operating Period Required FCCR
----------------------- -------------
Fourth quarter 2001,
Ending on 4/29/01 1.02X
Fiscal quarter ending an 7/28/01 0.85X
Fiscal quarter ending on 10/28/01 1.00X
Fiscal quarter ending on 1/27/02 1.15X
Fiscal quarter ending on 4/28/02,
And Quarterly thereafter 1.25X
Fixed Charge Coverage Ratio means Cash Flow
Available for Fixed Charges divided by
Total Fixed Charges.
Cash Flow Available for Fixed Charges means;
Net income
Plus: depreciation
Plus: amortization
Plus: real property rent expense
Plus. equipment rent expense
Plus: senior debt interest expense
Plus: capital lease interest
expense
Total Fixed Charges means:
Real property rent expense
Plus: equipment rent expense
Plus: senior debt interest expense
Plus: capital lease interest
expense
Plus: Principal required during
testing period for long term senior
debt
Plus: principal required during
testing period for capital leases.
Borrower shall deliver to Lender,
within 45 days of the end of each
fiscal quarter, a Compliance
Certificate in the form and
substance of EXHIBIT D annexed to
the Omnibus Agreement by and
between Borrower and Lender dated
as of the __ day of October, 2001"
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4.11 Except as specifically amended herein, the Revolving
Loan Agreement shall remain in full force and effect
in accordance with its terms.
5. AMENDMENTS TO TERM LOAN AGREEMENTS. The Term Loan Agreements
are hereby amended as follows:
5.1 The "Interest Rate" shall be eleven and one half
(11.50%) percent.
5.2 The definition of "Loan Documents" shall be modified
to include the Loan Agreements, Mortgages and Notes.
3.3 The definition of "Note" shall be modified to include
this Agreement, to the extent same modifies, amends
or restates the Revolving Note.
5.4 Paragraph 2.6.2 is hereby deleted in its entirety and
is hereby replaced by the following:
"Interest After Maturity. Commencing with
the day after the principal amount of the
Loan shall have become due and payable (by
acceleration or otherwise), such part of the
Loan or the entire Loan (as the case may be)
shall bear interest at the rate of fourteen
(14%) percent per annum (the "Default
Rate")."
5.5 Paragraph 5.1.1 is hereby deleted in its entirety and
is hereby replaced by the following:
"5.1.1 Annual Financial Statements. As soon
as practicable, and in any event within
ninety (90) days after the close of each
fiscal year of Borrower, Borrower shall
furnish to Lender the annual audit report
for such year, including audited statements
of income, retained earnings and changes in
financial position of Borrower for such
fiscal year, specific detail of the amount
of real property rent expense and equipment
rent expense, and the details of the amount
of the new store capital expenditures for
such fiscal year, and an audited balance
sheet of Borrower as of the close of such
fiscal year, and notes to each, all in
reasonable detail, setting forth in
comparative form the corresponding figures
for the preceding fiscal year where such
presentation is appropriate under GAAP,
certified without qualification by
independent certified public accountants of
recognized standing selected by Borrower and
acceptable to Lender, together with (or
included in such certification) a written
statement of such accountants substantially
to the effect that (i) such accountants
examined such financial statements in
accordance with generally accepted auditing
standards and accordingly made such tests of
accounting records and such other auditing
procedures as they considered necessary in
the circumstances and (ii) in the opinion of
such accountants such financial statements
present fairly the financial position of
8
Borrower as of the end of such fiscal year
and the results of its operations and the
changes in its financing position for the
fiscal year then ended, in conformity with
GAAP applied on a basis consistent with that
of the preceding fiscal year (except for
changes in application in which such
accountants concur)."
5.6 Paragraph 5.1.2 is hereby deleted in its entirety and
is hereby replaced by the following:
"5.1.2 Quarterly Financial Statements.
Within forty-five (45) days after the end of
each of the first three fiscal quarters of
such fiscal year, Borrower shall furnish to
Lender internally prepared interim financial
statements and a copy of its Form 10Q Report
filed with the Securities and Exchange
Commission with respect to such quarter."
5.7 Paragraph 5.2.5 is amended by adding the following to
the end thereof:
"Notwithstanding the foregoing, Borrower may
sell any of its assets provided, however
that Borrower has received the prior written
consent of FINOVA in the event that such
sale(s) exceed the aggregate sum of
$100,000.00 in any given fiscal year. In the
event that Borrower desires to sell any
assets which are security under the Loans,
and in the event that FINOVA provides its
prior written consent to such sale if
required herein, then all net proceeds of
such sale shall be paid directly to FINOVA.
In determining the net proceeds of any such
sale, the only permitted reduction to the
gross sales price would be for the expenses
incurred by the Borrower that directly
relate to such sale."
5.8 Article 5 is amended by adding the following
paragraphs:
"5.13 CROSS-COLLATERALIZATION. Borrower
acknowledges that all Obligations of
Borrower to Lender, whether arising under
the Loan Documents or otherwise, shall be
collateralized by all collateral granted by
Borrower to Lender, whether under the Loan
Documents or otherwise, so that all
collateral so granted to Lender hereunder
and thereunder shall secure all Obligations
of Borrower to Lender however or whenever
created or arising.
5.14 CROSS DEFAULT. Borrower acknowledges
that (i) any Default under the terms of this
Agreement or the Note; (ii) any Event of
Default under any agreement between Borrower
and Lender; or (iii) any default under any
other obligations of Borrower in excess of
$10,000.00 howsoever created and whether now
existing or hereafter arising, including
without limitation any capital and
9
operating leases, shall be deemed a default
under any of the Loan Documents or
otherwise.
5.15 CAPITAL EXPENDITURES. Except as set
forth on Appendix I annexed hereto and made
a part hereof, Borrower shall not make any
further capital expenditures with respect to
new stores. Notwithstanding the foregoing,
Borrower shall be permitted to incur
expenses for routine repair and maintenance
in the ordinary course of business. In the
event Borrower achieves a minimum Fixed
Charge Coverage Ratio (as hereafter defined)
of 1.25 to 1.00 for four consecutive
quarters beginning with the fourth (4th)
quarter of 2003, Borrower shall be permitted
to resume making capital expenditures with
respect to new stores.
5.16 CERTAIN OTHER COVENANTS. Borrower shall
not, without the prior written consent of
Lender:
a. Make advances, loans or extensions
of credits to, or invest in, any
other person or entity, except for
loans or cash advances to employees
in the ordinary course of business;
b. Create, incur, assume or permit to
exist any indebtedness for borrowed
money other than (i) the Secured
Debt; (ii) existing indebtedness of
Borrower in such amounts owing to
such creditors as are identified on
SCHEDULE XII attached hereto; and
(iii) indebtedness approved in
writing by Lender;
c. Guarantee or become directly or
continently liable for the
obligations of any other person or
entity except for endorsement of
instruments for deposit;
d. Except as set forth below, sell,
transfer, distribute or pay any
money or property to any Affiliate,
or invest in (by capital
contribution or otherwise) or
purchase or repurchase any stock or
obligations, or any property, of
any Affiliate, or become liable on
any guaranty of the obligations of
an Affiliate. Notwithstanding the
foregoing, and if no Event of
Default has occurred, Borrower may
pay those existing obligations to
Berjaya Group (Cayman) Limited as
previously disclosed to Lender.
5.9 Paragraph 6.1 is hereby deleted in its entirety and
is hereby replaced by
"FIXED CHARGE COVERAGE RATIO. Throughout the
Term, Borrower shall maintain a Fixed Charge
Coverage Ratio ("FCCR") at the following
levels:
10
Fiscal Operating Period Required FCCR
----------------------- -------------
Fourth quarter 2001,
Ending on 4/29/01 1.02X
Fiscal quarter ending on 7/28/01 0.85X
Fiscal quarter ending on 10/28/01 1.00X
Fiscal quarter ending on 1/27/02 1.15X
Fiscal quarter ending on 4/28/02,
And Quarterly thereafter 1.25X
Fixed Charge Coverage Ratio means Cash Flow
Available for Fixed Charges divided by Total
Fixed Charges.
Cash Flow Available for Fixed Charges means:
Net income
Plus: depreciation
Plus: amortization
Plus: real property rent expense
Plus: equipment rent expense
Plus: senior debt interest expense
Plus: capital lease interest
expense
Total Fixed Charges means:
Real property rent expense
Plus: equipment rent expense
Plus: senior debt interest expense
Plus: capital lease interest
expense
Plus: principal required during
testing period for long term
senior debt
Plus: principal required during
testing period for capital
leases.
Borrower shall deliver to Lender,
within 45 days of the end of each
fiscal quarter, a Compliance
Certificate in the form and
substance of EXHIBIT D annexed to
the Omnibus Agreement by and
between Borrower and Lender dated
as of the __ day of October, 2001.
5.10 Except as specifically amended herein, the Term Loan
Agreements shall remain in full force and effect in
accordance with their respective terms.
6. AMENDMENTS TO TERM NOTES. Each Term Note is hereby amended as
follows:
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6.1 The "Number of Monthly Installments" as defined in
section 1.5 of each Term Note shall be 133.
6.2 The "Interest Rate" as defined in section 1.7 of each
Term Note shall be increased to eleven and one half
(11.50%) percent.
6.3 The "Default Rate" as defined in section 1.8 of each
Term Note shall be increased to fourteen (14%)
percent.
6.4 The "Maturity Date" as defined in section 1.9 of each
Term Note shall be December 1, 2012.
6.5 The "Monthly Installment" as defined in section 1.4
of each Term Note shall be modified to reflect the
payment schedule attached as SCHEDULE XIII attached
hereto.
6.6 The "First Payment Date" as defined in section 1.40
of each Term Note shall mean November 25, 2001.
6.7 The "Loan Documents" as defined in section 1.12 of
each Term Note shall be modified to include the Loan
Agreements, Mortgages and Notes.
6.8 Paragraph 8 of each Term Note is hereby deleted in
its entirety and is hereby replaced by the following:
"PREPAYMENT. Except as provided herein,
Borrower may not prepay this Note. If no Event of
Default exists, Borrower may voluntarily prepay the
entire unpaid Principal Sum on any date on which a
Monthly Installment is payable. Borrower must give
Lender at least thirty (30) days prior written notice
of Borrower's intention to prepay. Once given, such
notice may not be withdrawn, and failure to prepay in
accordance with the notice shall be an Event of
Default.
The prepayment of the Principal Sum shall be
accompanied by a payment of all accrued and unpaid
interest, an administrative fee of $4,000 plus a
premium for prepayment. The amount of the premium
shall be: one quarter of one percent (0.25%) of the
unpaid Principal Sum during the first six (6) months
of the Loan Term; one half of one percent (0.50%) of
the unpaid Principal Sum from the seventh (7th)
through twelfth (12th) months of the Loan term; one
(1%) percent of the unpaid Principal Sum during the
second Loan Year; one and one-half (1.50%) percent of
the unpaid Principal Sum during the third Loan Year;
and three (3%) percent of the unpaid Principal Sum
during the fourth Loan year and thereafter.
If the unpaid balance of the Principal Sum
is accelerated, by reason of an Event of Default
during any of the Loan Years, such an acceleration
shall be deemed to be a prepayment and Borrower shall
pay to Lender, in
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addition to all other sums due as a result of the
acceleration, the applicable premium set forth
herein.
If a partial prepayment of the Principal Sum
occurs as a result of the application by Lender of
Taking Proceeds or Insurance Proceeds, as provided in
the Mortgages, each Monthly Installment thereafter
shall be reduced to an amount which will amortize the
then unpaid Principal Sum at the Interest Rate over
the then remaining Number of Monthly Installments. No
prepayment premium nor administrative fee is required
to be paid by Borrower in connection with any Taking
Proceeds or Insurance Proceeds."
6.9 Except as specifically amended herein, the Term Notes
shall remain in full force and effect in accordance
with their respective terms.
7. AMENDMENTS TO REVOLVING NOTE. The Revolving Note is hereby
amended as follows;
7.1 References to the "Loan Agreement" shall, without
limitation, be deemed to refer to the Revolving Loan
Agreement, as amended by that certain Amendment to
Revolving Loan Agreement dated as of April 12, 2001,
and as further amended herein.
7.2 The payment provisions are hereby deleted in their
entirety and are hereby replaced with the following:
"Commencing on November 25, 2001 and
continuing through the Maturity Date (as hereinafter
defined), this Note shall bear interest at a rate per
annum equal to the higher of (i) Prime Rate plus
three (3%) percent or (ii) eleven and one half
(11.50%) percent, but in no event to exceed the
Maximum Rate (as hereinafter defined). For purposes
hereof, the Prime Rate shall mean the rate of
interest established and published daily by Citibank,
N.A.
Monthly payments of interest only shall be
made on the first day of each and every calendar
month until and including the Maturity Date. All
payments of principal and interest on this Note are
to be made in lawful money of the United States of
America in immediately available funds, without
setoff, counterclaim or deduction of any nature, at
the office of Lender at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (or such other place as the
holder hereof shall designate to the Borrower in
writing), prior to 12:00 Noon, local time, on the day
when due.
If any payment of principal or interest
becomes due on a day which is not a Business Day,
that payment shall be made on the next Business Day
unless such next Business Day falls in another
calendar month in which event that payment shall be
made on the next preceding Business Day.
13
The Principal Sum, together with all accrued
and unpaid interest thereon and all other sums
payable hereunder, shall mature, and shall be due and
payable to Lender on December 31, 2001 (the "Maturity
Date")."
7.3 The following terms are hereby incorporated into the
Revolving Note:
"Provided there has been no Event of Default
under the terms of this Note, the Loan Agreement or
any of the other related documents evidencing or
securing the Principal Sum, the Borrower shall have
the option (the "Conversion Option") to convert this
loan to a permanent loan with a term of eighty four
(84) months commencing on January 1, 2002, Borrower
must give Lender at least thirty (30) days prior
written notice of its election to exercise its
Conversion Option. Once given, such notice may not be
withdrawn. Upon receipt of such notice, Lender shall
set the fixed rate which will be the highest daily
rate in effect on the Revolving Loan from October 25,
2001 until the conversion plus one hundred (100)
basis points.
Upon exercising its Conversion Option,
Borrower shall pay a fee to Lender in an amount equal
to the lesser of $100,000.00 or two (2%) percent of
the Principal Sum outstanding at the time of such
conversion to a permanent loan. Borrower agrees to
pay all costs, fees and expenses of Lender in
connection with the documentation and closing of such
conversion, including without limitation Lenders'
attorneys' fees and filing costs."
7.4 The "Default Rate" shall be increased to fourteen
(14%) percent.
7.5 Except as specifically amended herein, the Revolving
Note shall remain in full force and effect in
accordance with its terms.
8. Contemporaneously herewith, Roadhouse shall execute and
deliver to FINOVA fifteen (15) Modifications of Mortgages, in
substantially the form annexed as EXHIBIT A hereto, to be
recorded by FINOVA at the sole cost and expense of Borrower.
9. Contemporaneously herewith, Roadhouse shall execute and
deliver to FINOVA nine (9) Consolidation and Modification of
Mortgage Agreements covering the Florida Restaurants, in
substantially the form annexed as Exhibit B hereto, to be
recorded by FINOVA at the sole cost and expense of Borrower.
Borrower agrees that the Mortgages covering the Florida
Restaurants shall be modified to increase the aggregate
maximum amount secured by said Mortgages to $20,000,000.00.
Promptly upon the request of FINOVA, Borrower shall execute
and/or deliver such additional documentation as may be
required in order to secure FINOVA's interest in the Florida
Restaurants up to said maximum amount.
10. Within thirty (30) days of the date hereof, Borrower shall
deliver to FINOVA an updated ALTA Title Policy with limits in
the aggregate sum of $20,000,000.00
14
covering the Florida Restaurants. Borrower agrees to pay all
title fees and charges, and any stamp and other taxes which
may be due, on or before the recording of the Modifications of
Mortgage by the Title Company.
11. Roadhouse hereby authorizes FINOVA, at any time or times
hereafter, to file any and all Uniform Commercial Code
financing statements, amendments and continuation statements
and, all other agreements, documents and instruments
reasonably requested by FINOVA to perfect and maintain
FINOVA's security interest in the Premises and in all
Collateral as each is respectively defined in the Loan
Documents, Roadhouse agrees that a carbon, photographic
photostatic, or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement.
Roadhouse authorizes FINOVA to sign and file Uniform
Commercial Code financing statements and amendments without
Roadhouse's signature, as authorized by applicable law.
Roadhouse also ratifies its authorization for FINOVA to have
filed any like financing statements, amendments thereto and
continuation statements, if filed prior to the date of this
Agreement. Roadhouse hereby irrevocably constitutes and
appoints FINOVA and its officers and agents, with full power
of substitution, its true and lawful attorneys-in-fact with
full power and authority in the place and stead of Roadhouse,
to sign any documents to carry out the purpose of this Section
11. This power of attorney is coupled with an interest and
shall be irrevocable. For purposes of filing UCC's, Roadhouse
represents that its exact legal name and principal place of
business is as set forth above, that its organization number
is V72879 and that its tax id number is ▇▇-▇▇▇▇▇▇▇. Roadhouse
acknowledges and agrees that Roadhouse shall be responsible
for all fees and charges incurred by FINOVA in connection with
the UCC filings and lien search fees.
12. Contemporaneously herewith, Roadhouse shall deliver to FINOVA
an opinion from legal counsel in form acceptable to FINOVA
stating that this Agreement does not affect the perfection and
priority of FINOVA's security interest in the Collateral under
the existing Loan Documents. Within thirty (30) days of the
date hereof, Roadhouse shall deliver similar opinions from
legal counsel in each jurisdiction where the Restaurants are
located.
13. Within sixty (60) days of the date hereof, Roadhouse shall
deliver to FINOVA an Estoppel Certificate, in substantially
the form annexed hereto as EXHIBIT C, completed and signed by
each lessor of the leased Restaurants.
14. Contemporaneously herewith, Roadhouse shall deliver to FINOVA
an annual audited financial statement for the fiscal year
ending April 29, 2001, together with a Compliance Certificate
in substantially the form annexed hereto as Exhibit D.
15. Contemporaneously herewith, Roadhouse shall execute and
deliver to FINOVA (i) Security Agreements covering the
furniture, fixtures and equipment of the Hickory, North
Carolina and Alpharetta, Georgia Restaurants (the "New
Restaurants") and (ii) UCC-1 Financing Statements granting
FINOVA a first priority interest in the furniture, fixtures
and equipment at the New Restaurants.
15
each in form acceptable to FINOVA. Roadhouse agrees to execute
and deliver, and to cause any secured party with existing
liens on the furniture, fixture and equipment at the New
Restaurant to execute and deliver such other documents and
instruments as FINOVA or FINOVA's counsel may require to
secure FINOVA's first priority interest therein.
16. Within sixty (60) days of the date hereof, Roadhouse shall
deliver to FINOVA a Landlord Subordination Agreement and/or
Landlord Consent and Waiver from the Lessors of the New
Restaurants, each in form acceptable to FINOVA.
17. Roadhouse will deliver to FINOVA on a monthly basis, on or
before the fifth (5th) day of each month an executed
Compliance Certificate in the form annexed hereto as EXHIBIT
E, stating in part, that Roadhouse is not in payment default
with any credits or lienholders.
18. Roadhouse hereby warrants and represents to FINOVA that:
18.1 Except for the Known Defaults, each of the
representations and warranties set forth in the Loan
Documents is true in all respects as of the date
hereof.
18.2 Roadhouse is a Florida corporation.
18.3 Roadhouse is duly organized and existing under the
laws of the state of Florida and is duly licensed to
do business wherein the ownership of its property or
the conduct of its business requires such licensing.
18.4 Roadhouse has the right and power and is duly
authorized and empowered to enter into, execute,
deliver and perform this Agreement and has taken all
necessary action to authorize the execution, delivery
and performance of this Agreement and any other
agreement or instrument referred to herein. No
consent or approval of any entity or Person
(including, without limitation, any shareholder of
Roadhouse), no consent or approval of any landlord or
mortgagee, no waiver of any Lien or right of
distraint or other similar right and no consent
license, approval, authorization or declaration of
any governmental authority, bureau or agency, is
required in connection with the execution, delivery
or performance by Roadhouse, or the validity,
enforcement or priority, of this Agreement.
18.5 Roadhouse has taken all action required to authorize
the execution, delivery and performance of this
Agreement and all other agreements or instruments
required hereunder and contemplated hereby.
18.6 The execution and delivery by Roadhouse of this
Agreement and performance by it hereunder will not
violate any provision of law and will not conflict
with or result in a breach of any order, writ,
injunction, ordinance, resolution, decree, or other
similar document or instrument of any court or
governmental authority, bureau or agency, domestic
or foreign, or the certificate of incorporation,
by-laws or agreement or
16
certificate of partnership of Roadhouse, or create
(with or without the giving of notice or lapse of
time, or both) a default under or breach of any
agreement, bond, note or indenture to which Roadhouse
is a party, or by which it is bound or any of its
properties or assets is affected, or result in the
imposition of any Lien of any nature whatsoever upon
any of the properties or assets owned by or used in
connection with the business of Roadhouse.
18.7 This Agreement has been duly executed and delivered
by Roadhouse and constitutes the valid and legally
binding obligation of Roadhouse, enforceable in
accordance with its terms.
18.8 Except as set forth on SCHEDULE XIV attached hereto,
Roadhouse is not in default beyond any grace period
under any agreement with any creditor for borrowed
money if the effect of such default is to cause
Roadhouse's obligations which are the subject thereof
to become due prior to its maturity date or prior to
its regularly scheduled date of payment, Roadhouse
has not received any notices from third party
creditors of their intent to institute federal
bankruptcy proceedings against Roadhouse.
19. Contemporaneously herewith, Roadhouse shall pay or reimburse
FINOVA for all reasonable costs and expenses incurred by
FINOVA, including without limitation the fees and expenses of
FINOVA's attorneys, in connection with the transactions set
forth herein and the UCC lien search fees currently due in the
sum of $939.50.
20. On or before 12:00 noon on November 25, 2001, Roadhouse shall
deliver a retainer to ▇▇▇▇ Marks & ▇▇▇▇▇ in the amount of
$25,000.00 for the account of FINOVA's legal fees. In the
event actual legal fees incurred exceed the retainer amount,
Roadhouse shall pay same immediately on demand by Lender.
21. On or before 12:00 noon on November 25, 2001, Roadhouse shall
pay to FINOVA certified funds representing a restructuring fee
Of $100,000.00 in connection with the loan restructure and
this Agreement.
22. On or before 12:00 noon on November 25, 2001, Roadhouse shall
pay to FINOVA the sum of $159,644.74, representing the total
sum of late fees due and owing as of October 23, 2001.
23. Roadhouse hereby expressly agrees to execute any additional
documentation as may be reasonably requested by FINOVA to
secure its interest in the Restaurants, up to the maximum
indebtedness under the Loans, promptly upon FINOVA's receipt
therefor.
24. Upon satisfaction of all terms and conditions set forth
herein, FINOVA shall waive any Known Default under the Loan
Documents. Roadhouse acknowledges that TIME IS OF THE ESSENCE
with respect to all of its obligations under this Agreement.
Any failure to satisfy the conditions herein as and when due
shall be deemed an Event of Default under the Loan Documents
and shall entitle
17
FINOVA to exercise any remedies available to it under this
Agreement, the Loan Documents, at law in equity, or otherwise,
25. Except as specifically amended herein the Loan Documents shall
remain in full force and effect in accordance with their
respective terms.
26. Except as specifically stated herein, the foregoing does not
constitute a waiver of any term, provision, condition,
covenant or agreement contained in the Notes or in any of the
other Loan Documents, nor shall it (i) operate as a waiver of
any right, remedy, power or privilege thereunder, (ii)
prejudice or preclude any other or further exercise thereof or
the exercise of any right or remedy provided by law or in
equity, (iii) prejudice or preclude any other or further
exercise of any right or remedy provided by the Loan Documents
including without limitation, FINOVA's right to foreclose on
the collateral secured by the Loan Documents; (iv) entitle
Roadhouse to any other or further notice or demand whatsoever,
or (v) in any way modify, change, impair, affect, diminish or
release any liability of Roadhouse under or pursuant to any of
the Loan Documents.
27. In the event that this Agreement is not executed and returned
by Roadhouse on or before October 25, 2001; or in the event
that any of the terms and conditions of this Agreement are not
satisfied as set forth herein, WITH TIME BEING OF THE ESSENCE
THEREFORE, this Agreement shall be void and of no force and
effect and FINOVA shall be entitled to proceed to enforce all
rights and remedies granted under the Loan Documents. The
parties agree that there shall be no further extension and in
the event Roadhouse fails to satisfy the terms and conditions
of this Agreement on or before the timeframes set forth
herein, FINOVA shall be entitled to accelerate all sums due
under the Loans with no further notice to Roadhouse.
28. This Agreement shall be construed in accordance with the laws
of the state of Arizona.
29. ROADHOUSE IRREVOCABLY CONSENTS THAT ANY LEGAL ACTION OR
PROCEEDING AGAINST ROADHOUSE UNDER, ARISING OUT OF, OR IN ANY
MANNER RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
MAY BE BROUGHT IN ANY STATE COURT OF THE STATE OF ARIZONA
LOCATED IN MARICOPA COUNTY OR IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF ARIZONA. ROADHOUSE, BY ITS
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY AND
IRREVOCABLY CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION
OF ANY OF SUCH COURTS IN ANY SUCH ACTION OR PROCEEDING.
ROADHOUSE FURTHER AGREES THAT ANY LEGAL ACTION OR PROCEEDING
ROADHOUSE MAY BRING, ARISING OUT OF OR IN ANY MANNER RELATING
TO THIS AGREEMENT, THE LOAN AGREEMENT OR THE OTHER LOAN
DOCUMENTS, SHALL ONLY BE BROUGHT IN ANY STATE COURT OF THE
STATE OF ARIZONA LOCATED IN MARICOPA
▇▇
▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ DISTRICT COURT FOR THE DISTRICT
OF ARIZONA. ROADHOUSE ALSO IRREVOCABLY CONSENTS TO THE SERVICE
OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO
SUCH ACTION OR PROCEEDING BY DELIVERY THEREOF TO ROADHOUSE
IN THE MANNER PROVIDED FOR NOTICES IN THE LOAN AGREEMENT.
ROADHOUSE HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR
DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS OR ANY SIMILAR BASIS. ROADHOUSE SHALL NOT BE
ENTITLED IN ANY SUCH ACTION OR PROCEEDING TO ASSERT ANY
DEFENSE GIVEN OR ALLOWED UNDER THE LAWS OF ANY STATE OTHER
THAN THE STATE OF ARIZONA, UNLESS SUCH DEFENSE IS ALSO GIVEN
OR ALLOWED BY THE LAWS OF THE STATE OF ARIZONA. NOTHING HEREIN
SHALL AFFECT OR IMPAIR IN ANY MANNER OR TO ANY EXTENT THE
RIGHT OF LENDER TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ROADHOUSE IN ANY OTHER JURISDICTION OR TO
SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
30. ROADHOUSE AND FINOVA IRREVOCABLY WAIVE JURY TRIAL AND THE
RIGHT THERETO IN ANY AND ALL DISPUTES INVOLVING EITHER OF THEM
OR THEIR RESPECTIVE PARENTS, AFFILIATES OR RELATED ENTITIES OR
ANY OFFICER, DIRECTOR, SHAREHOLDER, MEMBER, ATTORNEY OR
PARTNER OR ANY OF THEM, WHETHER HEREUNDER OR UNDER ANY OTHER
LOAN DOCUMENTS HERETOFORE OR HEREAFTER EXECUTED. THIS WAIVER
SHALL BE DEEMED A COVENANT ENFORCEABLE INDEPENDENTLY OF ALL
OTHER PROVISIONS OF THIS AGREEMENT,
(Remainder of Page Intentionally Blank)
19
IN WITNESS WHEREOF, the parties have duly signed this Agreement this
26th day of October, 2001
FINOVA CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Contract Administration
ROADHOUSE GRILL, INC.
By: /s/ ▇▇▇▇▇ Sabi
-------------------------------------
Name: ▇▇▇▇▇ Sabi
Title: President
20
SCHEDULE I
THE FLORIDA RESTAURANTS
1. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇; Clay County
2. ▇▇▇▇ ▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇▇▇ County
3. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇ County
4. ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇▇ County
5. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇., ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; Manatee County
6. ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇▇▇▇ County
7. ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; Osceola County
8. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇; Palm Beach County
9. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; Seminole County
THE SOUTH CAROLINA RESTAURANTS
1. ▇▇▇ ▇'▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
2. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
21
SCHEDULE II
1997 MORTGAGES
1. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 1677, Page 0866 in the Office of the Clerk
of Clay County, Florida
2. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 8725, Page 2436-2454 in the Office of the
Clerk of ▇▇▇▇▇ County, Florida
3. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 16, 1997 at OR Book 866, Page 3054 in the Office of the Clerk
of ▇▇▇ County, Florida
4. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book R2049, Page 00990 in the Office of the Clerk
of ▇▇▇▇ County, Florida
5. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 23, 1997 at Book 1530, Page 3085 in the Office of the Clerk
of Manatee County, Florida
6. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 2410, Page 139 in the Office of the Clerk
of ▇▇▇▇▇▇ County, Florida
7. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at OR Book 1434, Page. 2214 in the Office of the
Clerk of Osceola County, Florida
8. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 19, 1997 at OR Book 9994, Page 1618 in the Office of the
Clerk of Palm Beach County, Florida
9. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 3298, Page 0601 in the Office of the Clerk
of Seminole County, Florida
10. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book M2169, Page 316 in the Office of the
Register of Richland County, South Carolina
11. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 4332, Page 0335 in the Office of the
Register of Lexington County, South Carolina
12. Mortgage and Security Agreement dated September 8, 1997 and recorded on
September 17, 1997 at Book 2923, Page 0836 in the Office of the
Register of Greenville County, South Carolina
22
SCHEDULE III
1998 MORTGAGES
1. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at Book 1725, Page 0169 in the Office of the Clerk of Clay
County, Florida
2. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
15, 1998 at Book 8975, Page 1391-1409 in the Office of the Clerk of
▇▇▇▇▇ County, Florida
3. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
11, 1998 at OR Book 2972, Page 0506 in the Office of the Clerk of ▇▇▇
County, Florida
4. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at Book R2135, Page 02150 in the office of the Clerk of ▇▇▇▇
County, Florida
5. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at Book 1557, Page 7165 in the Office of the Clerk, of Manatee
County, Florida
6. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at Book 2511, Page 1178 in the Office of the Clerk of ▇▇▇▇▇▇
County, Florida
7. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at OR Book 1506, Page 660 in the office of the ▇▇▇▇▇ of
Osceola County, Florida
8. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at OR Book 10457, Page 1421 in the Office of the Clerk of Palm
Beach County, Florida
9. Mortgage and Security Agreement dated June 3, 1998 and recorded on June
12, 1998 at Book 3442, Page 1792 in the Office of the Clerk of Seminole
County, Florida
23
SCHEDULE IV
FACILITY D RESTAURANT
1. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
2. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
3. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
24
SCHEDULE V
MODIFICATIONS OF MORTGAGE
1. Modification of Mortgage and Security Agreement dated April 10, 2001
recorded on May 9, 2001 at OR Book 12536 Page 1678 in the Office of the
Clerk of Palm Beach County,
2. Modification of Mortgage and Security Agreement dated April 10, 2001
recorded on May 15, 2001 at OR Book 1872 Page 2870 in the Office of the
Clerk of Osceola County.
3. Modification of Mortgage and Security Agreement dated April 10, 2001
recorded on April 19, 2001 at Book 02940 Page 0523 in the Office of the
Clerk of ▇▇▇▇▇▇ County,
4. Modification of Mortgage and Security Agreement dated April 10, 2001
recorded on April 23, 2001 at Book 1676 Page 6636 in the Office of the
Clerk of Manatee County.
5. Modification of Mortgage and Security Agreement dated April 10, 2001
recorded on April 19, 2001 at Book R2488 Page 00832 in the Office of
the, Clerk, of ▇▇▇▇ County.
6. Modification of Mortgage and Security Agreement dated April 10, 2001
and recorded April 19, 2001 at OR Book 03397 Page 4462 in the Office of
the Clerk of ▇▇▇ County.
7. Modification of Mortgage and Security Agreement dated April 10, 2001
and recorded April 18, 2001 at Book 9956 Pages 2250-2254 in the Office
of the Clerk of ▇▇▇▇▇ County.
8. Modification of Mortgage and Security Agreement dated April 10, 2001
and recorded April 23, 2001 at Book 1932 Page 1115 in the Office of
the Clerk of Clay County,
9. Modification of Mortgage and Security Agreement dated April 10, 2001.
and recorded April 20, 2001 at OR Book 4055 Page 1630 in the Office of
the Clerk- of Seminole County.
25
SCHEDULE VI
FACILITY A MORTGAGES
1. Leasehold Deed of Trust and Security Agreement recorded on April 16,
2001 at Book 5367 Page 716 in the Office of the Chancery Clerk of the
First Judicial District of ▇▇▇▇▇ County, Mississippi.
2. Leasehold Deed to Secure Debt recorded on April 13, 2001 at Book 4833
Page 204 in the Office of the Clerk of ▇▇▇▇▇▇▇ County, Georgia.
3. Leasehold Mortgage and Security Agreement recorded on April 12, 2001 at
OR Book 1330 Pages 918-941 in the Office of the Clerk of Clermont
County, Ohio,
4. Mortgage, Security Agreement, Financing Statement and Assignment of
Rents recorded on April 12, 2001 as Instrument No. ▇▇▇▇▇▇▇▇▇▇ in the
Office of the Clerk of the Circuit Court of Pulaski County, Arkansas.
26
SCHEDULE VII
FACILITY A RESTAURANTS
LEASEHOLD RESTAURANTS
1. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇ County
2. ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇ County
3. ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
FEE SITE
1. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇; Pulaski County
27
SCHEDULE VIII
FACILITY B NOTES
1. Promissory Note dated April 29, 2000 in the principal amount of
$1,195,745.00
2. Promissory Note dated April 28, 2000 in the principal amount of
$920,087.00
3. Promissory Note dated May 5, 2000 in the principal amount of
$931,591.00
4. Promissory Note dated May 10, 2000 in the principal amount of
$1,195,852.00
5. Promissory Note dated May 15, 2000 in the principal amount of
$972,023.00
6. Promissory Note dated August 21, 2000 in the principal amount of
$828,572.00
7. Promissory Note dated October 18, 2000 in the principal amount of
$1,238,600.00
8. Promissory Note dated October 20, 2000 in the principal amount of
$1,329,150.00
28
SCHEDULE IX
FACILITY B MORTGAGES
1. Leasehold Mortgage and Security Agreement recorded on May 1, 2000 at
Book 14872 Page 0531 in the Office of the Clerk of Monroe County, New
York.
2. Leasehold Deed of Trust and Security Agreement recorded on May 1, 2000
at Book 2269 Page 717 in the Office of the Register of Deeds of
Buncombe County, North Carolina.
3. Leasehold Mortgage and Security Agreement recorded an May 5, 2000 at OR
Book 31 Pages 2609-2631 in the Office of the Clerk of Delaware County,
Ohio.
4. Leasehold Mortgage and Security Agreement recorded on May 11, 2000 at
Book 12880 PAGE 9902 in the Office of the Clerk of Erie County, New
York.
5. Leasehold Mortgage and Security Agreement recorded on May 16, 2000 at
Book 12881 Page 5434 in the OFFICE of the Clerk of Erie County, New
York.
6. Leasehold Deed of Trust and Security Agreement recorded on August 21,
2000 at Book 11513 Page 540-564 in the Office of the Register of Deeds
of Mecklenburg County, North Carolina.
7. Deed to Secure Debt recorded on October 19,2000 as Instrument No,
2000-0140507 at Deed Book 13301 Page 4825 in the Office of the Clerk of
Superior Court, ▇▇▇▇ County, Georgia.
8. Deed to Secure Debt recorded on October 23, 2000 at Book 4338 Page 96
in the Office of the Clerk of Superior Court, Cherokee County, Georgia.
29
SCHEDULE X
FACILITY B RESTAURANTS
1. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; Monroe County
2. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
3. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇; Delaware County
4. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; Erie County
5. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇; Erie County
6. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
7. ▇▇▇▇ ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
8. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇; Cherokee County
30
SCHEDULE XI
OUTSTANDING PRINCIPAL SUMS OF TERM LOANS
Prinipal Outstanding
Loan Number Original Amount [As of 10/25]
----------- --------------- --------------------
5788500 15,000,000.00 13,206,280.57
5805600 2,880,000.00 2,197,245.37
5837301 1,185,852.00 1,137,941.67
5837302 1,195,745.00 1,139,896.77
5837303 920,087.00 877,113.60
5837304 9311591.00 892,993.96
5837305 828,572.00 802,580.96
5937306 972,023.00 932,551.98
5837307 1,238,600.00 1,208,988.24
5837309 1,329,150.00 1,297,373.42
31
SCHEDULE X11
EXISTING INDEBTEDNESS
Creditor Principal Loan Amount Principal Outstanding
-------- --------------------- ---------------------
[SEE APPENDIX II ATTACHED HERETO AND MADE A PART HEREOF]
32
SCHEDULE XIII
PAYMENT SCHEDULE
Principal Outstanding
Loan Number [As of 10/251 Monthly Installments
----------- --------------------- --------------------
5788500 13,206,280.57 176,083.51
5805600 2,197,245.37 29,296.57
5837301 1,137,941.67 15,172.54
5837302 1,139,896.77 15,198.60
5837303 877,113.60 11,694.83
5837304 892,993.96 11,906.57
5837305 802,580.96 10,701.07
5837306 932,551.98 12,434.01
5837307 1,208,988.24 16,119.82
5837308 1,297,373.42 17,298.29
33
SCHEDULE XIV
EXISTING DEFAULTS UNDER THIRD-PARTY LOAN AGREEMENTS
[SEE APPENDIX II ATTACHED HERETO AND MADE A PART HEREOF]
34