FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended July 28, 2002
Or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from _____________ to ________________
Commission file number 0-12145
AMARILLO MESQUITE GRILL, INC.
Exact mane of registrant as specified in its charter)
Kansas 48-0936946
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) identification No.)
Suite 200
302 North Rock Road
Wichita, Kansas 67206
(Address of principal executive offices)
(Zip Code)
(316) 685-7286
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes x No ___.
As of July 28, 2002, 8,241,137 shares of common stock $.01 par value were
outstanding.
AMARILLO MESQUITE GRILL, INC.
Notes to Consolidated Financial Statements
(Unaudited)
(1) Basis of Presentation
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles
for interim financial information and with the instructions to Form 10-Q
and Rule 10-01 of Regulation S-X. Accordingly, they do not include all
of the information and footnotes required by generally accepted
accounting principles for complete financial statements. In the
opinion of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been
included. Operating results for the twenty-six week period ended
July 28, 2002 are not necessarily indicative of the results that may be
expected for the year ended January 26, 2003. For further information,
refer to the consolidated financial statements and footnotes thereto
included in the Company's 10-K and Annual Report to Stockholders as
filed on April 25, 2002.
(2) Going Concern Assumption
The Company's financial statements have been prepared assuming the
company will continue as a going concern. As indicated in Note 10
to the Company's most recent annual report, "uncertainties and
Estimates Related to Liquidity," a substantial amount of the Company's
liquidity requirements were previously met by increases in
operating accounts payable, and there was no assurance that this source
of liquidity would continue to be available. That Note goes on to
indicate that in connection with its annual budgeting process,
management estimated that the restaurants would generate sufficient
cash flow from operations to enable the Company to meet its financial
obligations during the subsequent year. As indicated in the
accompanying statement of cash flows, for the twenty-six weeks ending
July 28, 2002, the Company's cash flow from operations was negative
despite the liquidity provided from another substantial increase in
accounts payable. These factors, combined with the other, ongoing
adverse factors as set forth in the accompanying and prior financial
statements, raise doubt about the Company's ability to continue as a
going concern. Management's plans in regard to these matters are
discussed in the Liquidity and Capital Resources section of
Management's Discussion and Analysis. The financial statements do
not include any adjustments that might result from the outcome of this
uncertainty.
(3) Net Earnings Per Share
The Company, as required under FASB Statement No. 128, Earnings Per
Share, calculates and presents both a basic and diluted earnings per
share in the financial statements. Earnings per common share is
computed on the basis of the weighted-average number of common shares
outstanding during each period presented. The Company has granted
options to employees to purchase 1,231,000 shares of common stock at a
weighted average exercise price of $1.86 per share. These options were
not included in the computation of diluted earnings per share because
the exercise price of those options exceeded the average market price
of the common shares during the quarter. Also since the Company had a
net loss available to common stockholders, inclusion of these options
would be antidilutive to earnings per share.
(4) Goodwill
As of January 28, 2002, the company adopted Financial Accounting
Standards Board Statement No. 142, "Goodwill and Other Intangible
Assets." Statement 142: (a) eliminates the amortization of goodwill
and other intangibles that are determined to have an indefinite life,
and (b) requires, at a minimum, annual impairment tests for goodwill
and other intangible assets, through a comparison of the fair value of
the assets to their carrying values. In the first quarter of fiscal
2003, the Company ceased amortization of goodwill. The first step of
the transitional impairment test was completed during the second
quarter of fiscal 2003, which required a comparison of the fair value
of each reporting unit to its carrying value to determine whether there
was an indication that an impairment may exist.
A reporting unit was defined as an individual restaurant. Fair values
of the reporting units were estimated using a multiple of each unit's
cash flow for the fiscal year ended January 27, 2002. Based on those
valuations, the Company determined that two restaurants had estimated
fair values below their carrying values, indicating an impairment of
the goodwill associated with those units may exist. In addition, one
restaurant associated with the acquisition of the goodwill has been
closed, and goodwill allocated to that unit will be impaired. The
total amount of goodwill related to these three units is approximately
$385,000. The Company will be measuring the impairment loss
required by the second step of the transitional impairment test during
its quarter ended October 27, 2002.
The effect of adopting statement No. 142 on net income and earnings per share
is as follows:
Thirteen Weeks Ended Twenty-Six
Weeks Ended
07/28/02 07/29/01 07/28/02
07/29/01
Net loss, as reported $ (712,108) $ (379,020) $ (748,416) $
(437,068)
Add goodwill amortization - 18,205 -
36,410
Net loss, as adjusted $ (712,108) $ (360,815) $ (748,416) $
(400,658)
Net loss per common share -
basic & diluted, as reported. $ (0.09) $ (0.05) $ (0.09) $
(0.05)
Goodwill amortization - 0.00 -
0.00
Net loss per common share -
basic & diluted as reported $ (0.09) $ (0.05) $ (0.09) $
(0.05)
Item 1. Financial Statements
Amarillo Mesquite Grill, Inc.
Balance Sheets
(Unaudited)
ASSETS
July 28, 2002 January 27, 2002
Current Assets:
Cash $ 260,882 $ 259,050
Accounts Receivable $ 5,328 $ 20,381
Note Receivable $ 10,001 $ 13,047
Advances to affiliate $ 44,621 $ 13,364
Inventories $ 158,791 $ 150,867
Prepaid expenses and other current assets $ 272,402 $ 152,533
Total current assets $ 752,025 $ 609,242
Property & Equipment:
Buildings $ 682,829 $ 682,829
Leasehold improvements $ 1,865,268 $ 2,193,445
Equipment & fixtures $ 3,483,801 $ 4,030,661
Transportation Equipment $ 18,999 $ 18,999
Property under capital leases $ 848,822 $ 848,822
$ 6,899,719 $ 7,774,756
Less: accumulated depreciation & amort ($ 3,118,940) ($ 3,279,540)
Total property and equipment $ 3,780,779 $ 4,495,216
Other Assets:
Cost in excess of net tangible assets
of purchased business, net of
amortization of $406,644 $ 540,367 $ 540,367
Deposits and other $ 55,123 $ 35,123
Note Receivable $ 10,398 $ 14,448
Total other assets $ 605,888 $ 589,938
Total assets $ 5,138,692 $ 5,694,396
LIABILITIES & STOCKHOLDERS EQUITY (DEFICIT)
Current Liabilities:
Notes payable $ 6,138,167 $ 241,299
Current portion of obligation under
capital lease $ 50,231 $ 56,024
Accounts Payable $ 1,334,975 $ 1,202,836
Accrued payroll $ 165,507 $ 180,076
Accrual for Gift Certificates $ 309,952 $ 402,754
Other Accrued liabilities $ 394,262 $ 449,003
Accrual for Restaurant Closing $ 199,729 $ 91,887
Total current liabilities $ 8,592,823 $ 2,623,879
Long term liabilities:
Long-term debt, less current portion $ 90,675 $ 5,904,586
Obligation under capital lease, less
current portion $ 843,270 $ 860,011
Total Liabilities $ 9,526,768 $ 9,388,476
Stockholders' equity (deficit):
Preferred stock, $.01 par value, authorized
10,000,000 shares, none issued
Common stock, $.01 par value, authorized
20,000,000 shares issued 8,301,137 shares
at July 28, 2002 and at January 27, 2002 $ 83,011 $ 83,011
Additional paid-in capital $ 8,008,722 $ 7,954,302
Accumulated deficit ($12,209,809) ($11,461,393)
Treasury stock, 60,000 shares of common
stock at cost ($ 270,000) ($ 270,000)
Total stockholders' equity (deficit) ($ 4,388,076) ($ 3,694,080)
Total liabilities and stockholders'
deficit $ 5,138,692 $ 5,694,396
Amarillo Mesquite Grill, Inc.
Statement of Operations
(Unaudited)
Thirteen Weeks Ended Twenty-Six Weeks Ended
07/28/2002 07/29/2001 07/28/2002 07/29/2001
Sales $3,912,790 $4,653,177 $8,107,042 $9,678,822
Costs and expenses
Cost of goods sold $1,431,201 $1,763,362 $2,930,971 $3,546,576
Operating expenses $2,110,778 $2,540,970 $4,263,979 $5,161,648
Depreciation and amortization $ 157,136 $ 238,857 $ 343,479 $ 475,400
General and administrative $ 250,557 $ 284,197 $ 521,818 $ 549,322
Asset impairment $ 126,046 $ - $ 126,046 $ -
Provision for restaurant
closings $ 422,016 $ 47,770 $ 422,016 $ 47,770
$4,497,734 $4,875,156 $8,608,309 $9,780,716
Operating income $ (584,844) $ (221,979) $ (501,267) $ (101,894
Other income (expense)
Interest expense $ (102,704) $ (132,581) $ (198,229) $ (286,254)
Non cash expense from
issuance of stock options
to related parties
pursuant to debt
guarantees $ (24,460) $ (24,460) $ (48,920) $ (48,920)
Total other expense $ (127,164) $ (157,041) $ (247,149) $ (335,174)
Loss before income taxes $ (712,108) $ (379,020) $ (748,416) $ (437,068)
Net loss per common share-
basic & diluted $ (0.09) $ (0.05) $ (0.09) $ (0.05)
Average shares outstanding-
basic and diluted 8,241,137 8,241,137 8,241,137 8,241,137
Amarillo Mesquite Grill, Inc.
Statement of Cash Flows
(Unaudited)
Twenty-Six Weeks Ended
July 28, 2002 July 29, 2001
Cash flows from operating activities
Net loss $ (748,416) $ (437,068)
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization $ 343,479 $ 475,400
Provision for restaurant closing $ 422,016 $ -
Asset impairment $ 126,046 $ -
Non cash expense from issuance of stock
options to related parties pursuant to
debt guarantees $ 48,920 $ 48,920
Non cash compensation expense $ 5,500 $ -
Changes in assets and liabilities
(increase) decrease in accounts receivable $ 15,053 $ 9,546
(increase) decrease in notes receivable $ 7,096 $ -
(increase) decrease in inventories $ (7,924) $ (2,737)
(increase) decrease in prepaid expenses
and other assets $ (139,869) $ (164,389)
Increase (decrease) in accounts payable $ 132,139 $ 340,124
Increase (decrease) in accrued expenses $ (181,312) $ (155,384)
Advance to affiliate $ (31,257) $ (19,832)
Cash provided by operating activities $ (8,529) $ 94,580
Cash flows from investing activities:
Purchase of property and equipment $ (50,062) $ (248,006)
Cash used in investing activities $ (50,062) $ (248,006)
Cash flows from financing activities:
Proceeds from long-term debt $ 200,000 $ 187,165
Repayment of notes payable and
note payable related party $ - $ (43,354)
Repayment of long-term borrowings
and capital lease obligations $ (139,577) $ (22,534)
Cash used in financing activities $ 60,423 $ 121,277
Increase in cash $ 1,832 $ (32,149)
Cash at beginning of period $ 259,050 $ 348,182
Cash at the end of period $ 260,882 $ 316,033
Supplemental disclosure of cash flow
information
Cash paid for interest $ 198,229 $ 286,254
Cash paid for income taxes 0 0
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operation.
Critical Accounting Policies
Management's discussion and Analysis of Financial Condition and Results of
Operations is based upon our consolidated financial statements, which were
prepared in accordance with accounting principles generally accepted in the
United States of America. These principles require us to make estimates and
assumptions that affect the reported amounts in the consolidated financial
statements and notes thereto. Actual results may differ from these
estimates, and such differences may be material to the consolidated financial
statements. We believe that the following significant accounting policies
involve a significant degree of subjectivity of complexity (see Note 2 of our
consolidated Financial Statements in our Annual Report on Form 10-K for the
fiscal year ended January 27, 2002 for a complete discussion of our
significant accounting policies).
Impairment of Long-lived Assets:
Property and equipment is reviewed for impairment whenever events or changes
in circumstances indicate the carrying amount of an asset may not be
recoverable. A two-year history of restaurant operating losses is used as a
primary indicator of potential impairment. Recoverability of assets to be
held and used is measured on a restaurant-by-restaurant basis through
comparison of the carrying amount of the assets to the future net cash flows
expected to be generated by the assets. Assets to be disposed of are reported
at the lower of the carrying amount or fair value, less costs to sell. The
assessment process for determining future cash flows and fair value requires
the use of estimates and assumptions which are subject to a high degree of
judgment. If these assumptions change in the future, we may be required to
record additional impairment charges for these assets.
Results of Operations
Thirteen Weeks Ended July 28, 2002 Compared to Thirteen Weeks Ended
July 29, 2001.
For the thirteen weeks ended July 28, 2002, sales decreased 15.9% to
$3,912,790 as compared to $4,653,177 for the second quarter of the
prior year. As of July 28, 2002 the Company operated twelve Amarillo
Mesquite Grills as compared to fourteen restaurants at the same period
last year.
Cost of sales, as a percentage of total sales, was 36.6% for the thirteen
weeks ended July 28, 2002 as compared to 37.9% for the second quarter of
the prior year. The cost of sales as a percentage of total sales was down
due to the lower cost of meat and groceries.
Operating expenses, as a percentage of total sales, were 54.0% and 54.6%
for the 2002 and 2001 periods respectively. Operating expenses as a
percentage of sales were down slightly as compared to the same quarter
ended July 29, 2001.
General and Administrative expenses, as a percentage of sales, was 6.5% for
the thirteen weeks ended July 28, 2002 as compared to 6.1% for the second
quarter of the prior year. The increase in general and administrative
expense, as a percentage of sales, is the result of the decrease in sales.
The dollars spent were actually lower this period as compared to the same
period last year.
Depreciation and amortization is directly related to the acquisition and
disposition of fixed assets. The investment in fixed assets decreased
approximately $2,775,000 from the end of the second quarter last year to
the end of the second quarter of the current year. Depreciation and
amortization decreased due to the closing of stores as well as items
becoming fully depreciated.
Interest expense was $102,704 for the quarter ended July 28, 2002 as
compared to $132,581 for the same period a year ago. Interest expense is
a function of the interest rate and the amount of debt. The interest rate
has decreased over the past few months as well as a reduction in the short
term and long term debt. Consequently interest expense is lower this quarter
as compared to the same quarter last year.
The Company incurred noncash expenses of $24,460 for the 2002 and 2001 periods
respectively, relating to the issuance of stock options pursuant to debt
guarantees.
During the quarter ended July 28, 2002 management decided to close three
underperforming units. The first store to close was the unit in Muskogee,
Oklahoma. Its last day of business was as of August 25, 2002. The Salina,
Kansas and Rogers, Arkansas units will be closed during the month of
September, 2002. With respect to these closures the Company has accrued
$422,016 representing $127,042 in estimated future costs to be incurred prior
to finding a Sublessee for the facilities and $294,974 in non-cash write-offs
of certain leasehold improvements and equipment. These costs have been
recorded as "provision for restaurant closings" on the income statement.
The Company incurred operating losses of $113,668 in these three units during
the first two quarters of fiscal year 2003. A non-cash write-off of $126,046
was also recorded; representing the net book value of other equipment that
management believes would have no fair value or use outside the restaurants.
These costs were recorded on the income statement as "Asset impairment".
Twenty Six Weeks Ended July 28, 2002 Compared to Twenty Six Weeks Ended
July 29, 2001.
For the twenty-six weeks ended July 28, 2002, sales decreased 16.2% to
$8,107,042 as compared to sales of $9,678,822 for the first twenty-six
weeks of the prior year. The Company operated twelve Amarillo Mesquite
Grills as of July 28, 2002 as compared to fourteen in the same period
last year.
Cost of sales, as a percentage of total sales, was 36.2% and 36.6% for
the 2002 and 2001 periods respectively. The cost of sales as a percentage
of total sales was down due to the lower cost of meat and groceries.
Operating expenses, as a percentage of total sales, were 52.6% and 53.3%
for the 2002 and 2001 periods respectively. Operating expenses as a
percentage of sales were down slightly as compared to the same twenty-six
week period ended July 29, 2001.
General and Administrative expenses, as a percentage of total sales, was 6.4%
for the twenty-six week period ended July 28, 2002 as compared to 5.7% for
the first twenty six weeks of the prior year. The increase in general and
administrative expense, as a percentage of sales, is the result of the
decrease in sales. The dollars spent were actually lower this period as
compared to the same period last year.
Depreciation and amortization is directly related to the acquisition and
disposition of fixed assets. Depreciation and amortization decreased due
to the closing of stores as well as items becoming fully depreciated.
Interest expense was $198,229 for the twenty-six week period ended
July 28, 2002 as compared to $286,254 for the same period a year ago.
Interest expense is a function of the interest rate and the amount of
debt. The interest rate has decreased over the past few months as well
as a reduction in the short term and long term debt. Consequently
interest expense is lower this quarter as compared to the same quarter
last year.
Liquidity and Capital Resources
The Company's primary sources of funding to finance its business have been
its cash flow from operations, and proceeds from bank debt. On July 28, 2002
and January 27, 2002, the Company had an excess of current liabilities over
current assets of $7,840,798, and $2,014,637 respectively. Included as a
current liability as of July 28, 2002 is a bank note payable in the
amount of $5,904,586 which is due April 15, 2003. Cash flow from operations
was $(8,529) and $94,580 for 2002 and 2001 respectively. The Company's cash
flow from operations has been substantially generated by increases in its
accounts payable (see statement of cash flows). Particularly given the
negative cash flow from operations for 2002, there may be periods during
the remainder of the year when cash flow is insufficient and additional debt
or equity investment may be necessary. There is no assurance that such
additional debt or equity will be available to the Company. If additional
debt or equity is not available, there is no assurance that the Company will
be able to continue without restructuring its obligations, or selling operating
assets. Management has financial as well as operational restructuring plans
under consideration, and is evaluating its options. As reflected on the
Company's balance sheet, and as further reflected by recent and expected
future asset impairment provisions, the estimated fair value of the Company's
assets is less than the Company's liabilities, and that value has been
declining. Accordingly, there can be no assurance that the Company will be
able to fully satisfy all its obligations, either through future operations
or through a future financial restructuring, should that be deemed necessary.
Management evaluates store performance and cash flows weekly. On a long-term
basis, if cash flows from operations are not sufficient to meet working
capital needs, management will consider menu modifications and price
adjustments to increase margins. Management will also take actions to reduce
store-level operating costs where possible. Additionally, management
would consider closing underperforming locations where it believes the long
term prospect of obtaining positive cash flow would not be possible.
Substantially all of the Company's revenues are derived from cash sales. The
Company does not maintain significant receivables and inventories: therefore,
working capital requirement for receivables and inventories are not
significant.
The Company has renewed its bank debt that provides for interest only payments
through April 15, 2003. In this quarter the Company paid in full the
promissory note payable entered into for the purchase of equipment for its
relocation of the West restaurant location in Wichita, Kansas, in the amount
of $31,000. The Company took out a new note in the amount of $200,000 on June
27, 2002 with a variable interest rate of Prime Rate as published in the Wall
Street Journal, currently at 4.75% with a maturity date of June 27, 2004.
This new note is guaranteed by two of the directors. The Company also renewed
the current note of $124,257 on June 18, 2002 with a variable interest rate
of 4.75%. The Company intends to use its cash flow from operations in
2003 to make a partial reduction in its $324,257 notes payable to a bank.
This report contains certain forward-looking statements, including those
relating to expected future cash flow from operations. Although the Company
believes that the assumptions underlying the forward-looking statements
contained herein are reasonable, actual results could differ materially from
such forward-looking statements. In light of the significant uncertainties
inherent in the forward-looking statements included herein, the inclusion of
such information should not be regarded as a representation by the Company
that objectives and plans of the Company will be achieved.
Part II - OTHER INFORMATION
Item 1. Legal Proceedings
Not applicable
Item 2. Changes in Securities
Not applicable
Item 3. Defaults Upon Senior Securities
Not applicable
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable
Item 5. Other Information
Not applicable
Item 6. Exhibits and Reports of Form 8-K
10.1 Promissory Note Dated June 27, 2002 between the Company and
Intrust Bank.
Item 6.
Exhibit 10.1
PROMISSORY NOTE
Principal Loan Date Maturity Loan No Call/Coll Account
Officer Initials
$200,000.00 06/27/2002 06/27/2004 39742 04AQ/27 R-186943
JL23
References in the shaded area are for Lender's use only and do not limit the
applicability of this
document to any
particular loan or item.
Any item above containing ******* has been omitted due to text length
limitations
Borrower: Amarillo Mesquite Grill, Inc. (TIN: 48-0936946) Lender:
INTRUST Bank, N.A.
P.O. Box 2817
105 N. Main
Wichita, KS 67201-2817 P.O. Box One
Wichita, KS 67202
(316) 383-1111
Principal Amount: $200,000.00 Initial Rate: 4.750%
Date of Note: June
27, 2002
PROMISE TO PAY. Amarillo Mesquite Grill, Inc. ("Borrower") promises to pay to
INTRUST Bank, N.A. ("Lender") or order, in lawful money of the United States
of America, the principal amount of Two Hundred Thousand & 00/100 Dollars
($200,000.00), together with interest on the unpaid principal balance from
June 27, 2002, until paid in full.
PAYMENT: Subject to any payment changes resulting from changes in the Index,
Borrower will pay this loan in 23 regular payments of $9,000.00 each and one
irregular last payment estimated at $2,923.59. Borrower's first payment is
due July 27, 2002, and all subsequent payments are due on the same day of each
month after that. Borrower's final payment will be due on June 27, 2004, and
will be for all principal and all accrued interest not yet paid. Payments
include principal and interest. Unless otherwise agreed or required by
applicable law, payments will be applied first to accrued unpaid interest,
then to principal, and any remaining amount to any unpaid collection costs
and late charges. The annual interest rate for this Note is computed on a
365/360 basis; that is, by applying the ratio of the annual interest rate
over a year of 360 days, multiplied by the outstanding principal balance,
multiplied by the actual number of days the principal balance is outstanding.
Borrower will pay Lender at Lender's address shown above or at such other
place as Lender may designate in writing.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change
from time to time based on changes in an independent index which is the Prime
Rate as published in the Wall Street Journal Southwestern Edition
(the "Index"). The index is not necessarily the lowest rate charged by Lender
on its loans. If the Index becomes unavailable during the term of his loan,
Lender may designate a substitute index after notice to Borrower. Lender will
tell Borrower the current index rate upon Borrower's request. The interest
rate change will not occur more often than each month on the first day of the
month following the change of the index. Borrower understands that Lender
may make loans based on other rates as well. The Index currently is 4.75%
per annum. The Interest rate to be applied to the unpaid principal balance
of the Note will be at a rate equal to the Index, resulting in an initial rate
of 4.75% per annum. NOTICE: Under no circumstances will the interest rate
on this Note be more than the maximum rate allowed by applicable law.
Whenever increases occur in the interest rate, Lender, at its option, may
do one or more of the following: (A) Increase Borrower's payments to ensure
Borrower's loan will pay off by its original final maturity date, (B) Increase
Borrower's payments to cover accruing interest, (C) Increase the number of
Borrower's payments, and (D) continue Borrower's payments at the same amount
and increase Borrower's final payment.
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance
charges are earned fully as of the date of the loan and will not be subject
to refund upon early payment (whether voluntary or as a result of default),
except as otherwise required by law. Except for the foregoing, Borrower may
pay without penalty all or a portion of the amount owed earlier than it is
due. Early payments will not, unless agreed to by Lender in writing, relieve
Borrower of Borrower's obligation to continue to make payments under the
payment schedule. Rather, early payments will reduce the principal balance
due. Borrower agrees not to continue to make payments under the payment
schedule. Rather, early payments will reduce the principal balance due.
Borrower agrees not to send Lender payments marked "paid in full", "without
recourse", or similar language. If Borrower sends such a payment, Lender
may accept it without losing any of Lender's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender.
All written communications concerning disputed amounts, including any check
or other payment instrument that indicates that the payment constitutes
"payment in full" of the amount owed or that is tendered with other conditions
or limitations or as full satisfaction of disputed amount must be mailed or
delivered to: INTRUST Bank, N.A. Commercial Loans Dept., Attn.: Final Payment
Clerk, 105 N. Main Wichita, KS 67202.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly schedule payment or $100.00,
whichever is less.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final
maturity, Lender, at its option, may, if permitted under applicable law,
increase the variable interest rate on this Note to 2.000 percentage points
over the Index. The interest rate will not exceed the maximum rate permitted
by applicable law.
DEFAULT: Each of the following shall constitute an event of default
("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower fails to comply with or to perform any other term,
obligation, covenant or condition contained in this Note or in any of the
related documents or to comply with or to perform any term, obligation,
covenant or condition contained in any other agreement between Lender and
Borrower.
Default in Favor of Third Parties. Borrower or any Grantor defaults under
any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in flavor of any other creditor
or person that may materially affect any of Borrower's property or Borrower's
ability to repay this Note or perform Borrower's obligations under this
Note or any of the related documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Borrower or on Borrower's behalf under this Note or
the related documents is false or misleading in any material respect,
either now or at the time made or furnished or become false or misleading
at any time thereafter.
Insolvency. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a receiver
for any part of Borrower's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower or by any governmental agency
against any collateral securing the loan. This includes a garnishment of
any of Borrower's accounts, including deposit accounts, with Lender.
However, this Event of Default shall not apply if there is a good faith
dispute by Borrower as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if Borrower
give Lender written notice of the creditor or forfeiture proceeding and
deposits with Lender monies or a surety bond for the creditor or forfeiture
proceeding, in an amount determined by Lender, in its sole discretion,
as being an adequate reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with respect
to any Guarantor of any of the indebtedness or any Guarantor dies or become
incompetent, or revokes or disputes the validity of, or liability under, any
guaranty of the indebtedness evidenced by the Note.
Change in Ownership. Any change in ownership of twenty-five percent (25%)
or more of the common stock of Borrower.
Adverse Change. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of this
Note is impaired.
Insecurity. Lender in good faith believes itself insecure.
PROMISSORY NOTE
Loan No: 39742 (Continued) Page 2
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid
principal balance on this Note and all accrued unpaid interest immediately
due, and then Borrower will pay that amount.
EXPENSES. If Lender institutes any suit or action to enforce any of the
terms of this Note, Lender shall be entitled to recover Lender's reasonable
expenses that Lender incurs in realizing on the Collateral. Whether
or not any court action is involved, all reasonable expenses Lender incurs
that in Lender's opinion are necessary at any time for the protection of
its interest or the enforcement of its rights shall become a part of the
loan payable on demand and shall bear interest at the Note rate from the
date of the expenditure until repaid. Expenses covered by this paragraph
include, without limitation, Lender's legal expenses whether or not there
is a lawsuit, including expenses for bankruptcy proceedings (including
efforts to modify or vacate and automatic stay or injunction), and appeals,
and any court costs and collection agency fees.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender or
Borrower against the other.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Kansas. This
Note has been accepted by Lender in the State of Kansas.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves
a right of setoff in all Borrower's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Borrower holds
jointly with someone else and all accounts Borrower may open in the future.
However, this does not include any IRA or Keogh accounts, or any trust
accounts for which setoff would be prohibited by law. Borrower authorizes
Lender, to the extent permitted by applicable law, to charge or setoff
all sums owing on the indebtedness against any and all such accounts, and, at
Lender's option, to administratively freeze all such accounts to allow
Lender to protect Lender's charge and setoff rights provided in this paragraph.
COLLATERAL. Borrower acknowledges this Note is secured by Security Agreement
dated 6/10/97 covering all tangible and intangible property of Amarillo
Mesquite Grill, Inc.: all equipment, utensils, small wares, furniture,
inventory, accounts, contract rights, general intangibles, fixtures and
machinery located at various locations listed on the attached Exhibit "A".
FINANCIAL STATEMENTS. Borrower covenants and agrees with Lender that
Borrower will furnish to Lender, in a form satisfactory to Lender, such
financial information and statements as Lender may request from time to time,
including, without limitation, balance sheet and income statements on a
periodic basis, tax returns, and listings of inventory, accounts or other
assets. Borrower further covenants and agrees with Lender that all financial
information and statements provided to Lender shall be prepared in accordance
with generally accepted accounting principles, consistently applied, and
shall be certified by Borrower as being true and correct. Borrower agrees to
deliver financial information and statements requested by Lender no later than
thirty (30) days after Lender's request for such information.
TERMS AND FEES IF REFINANCED. Borrower acknowledges that Lender is under
no obligations to refinance this Note upon its maturity. Any refinance
shall be at Lender's sole option and may include terms and conditions that
differ materially from those contained in this Note. Upon refinance, Bank
may impose such fees and charges as the Bank deems appropriate, including,
without limitation, a refinance fee, and if this Note evidences a line of
credit, an unused commitment fee.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower,
and upon Borrower's heirs, personal representatives, successors and assigns
and shall inure to the benefit of Lender and its successors and assigns.
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Borrower and any other person
who signs, guarantees or endorses this Note, to the extent allowed by law,
waive presentment, demand for payment, protest and notice of dishonor. Upon
any change in the terms of this Note, and unless otherwise expressly state in
writing, no party who signs this Note, whether as maker, guarantor,
accommodation maker or endorser, shall be released from liability. All such
parties agree that Lender may renew or extend (repeatedly and for any length
of time) this loan or release any party or guarantor or collateral; or impair,
fail to realize upon or perfect Lender's security interest in the collateral;
and take any of the action deemed necessary by Lender without the consent
of or notice to anyone. All such parties also agree that Lender may modify
this loan without the consent of or notice to anyone other than the party
with whom the modification is made. The obligations under this Note are
joint and several.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE NOTE.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE PROMISSORY NOTE.
BORROWER:
AMARILLO MESQUITE GRILL, INC.
By: ___________________________________________ By:
_______________________________________________
Chris F. Hotze, Alan Bundy,
President of Amarillo Mesquite Grill, Inc. Vice President of
Amarillo Mesquite
Grill, Inc.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Amarillo Mesquite Grill, Inc.
(Registrant)
Date: September 16, 2002 /s/CHRIS F. HOTZE
Chris F. Hotze - President
CERTIFICATIONS
I, Chris F. Hotze, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Amarillo Mesquite
Grill, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered
by this quarterly report.;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this quarterly report.
Date: September 16, 2002 /s/ Chris F. Hotze
(Signature)
President
I, Alan L. Bundy, certify that:
1. I have reviewed this quarterly report on Form 10-Q of Amarillo Mesquite
Grill, Inc.;
2. Based on my knowledge, this quarterly report does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements made, in light of the circumstances under which such
statements were made, not misleading with respect to the period covered
by this quarterly report.;
3. Based on my knowledge, the financial statements, and other financial
information included in this quarterly report, fairly present in all
material respects the financial condition, results of operations and
cash flows of the registrant as of, and for, the periods presented in
this quarterly report.
Date: September 16, 2002 /s/ Alan L. Bundy
(Signature)
Executive Vice President