TAM LOAN AGREEMENT (TERM)
Loan Agreement ("Agreement"), dated as of October 31, 1997, by and
between TAM RESTAURANT HOLDING CORP., a Delaware corporation ("Borrower"), and
each of ARBCO ASSOCIATES, L.P. and KAYNE, ANDERSON NON-TRADITIONAL INVESTMENTS,
L.P., each a California limited partnership (each a "Lender" and, together,
"Lenders").
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
1.1. DEFINITIONS. The definitions set forth in the Recitals are
incorporated herein by reference.
"Agreement" shall mean this Loan Agreement, either as
originally executed or as it may from time to time be supplemented, modified, or
amended.
"Affiliate" shall mean any person or business entity, directly
or indirectly, related to, in control of, controlled by or under the common
control of any other person, or of a successor thereof, whether through merger,
consolidation, transfer of assets or otherwise.
"American Park Restaurant Operating Profit" shall mean all
earnings of Borrower's American Park Restaurant (or as otherwise named) to be
opened in Battery Park, (Manhattan) New York City before any allocation thereto
of corporate overhead expense and before interest, taxes, depreciation and
amortization, all in accordance with GAAP.
"Assets" shall have the meaning usually given that term in
accordance with GAAP, but shall exclude sums due to Borrower from Affiliates
(other than subsidiaries) of Borrower.
"Business Day" shall mean a day of the year on which banks are
not required or authorized to close in California.
"Contingent Liabilities" shall mean all contingent liabilities
as determined and computed in accordance with GAAP.
"Current Assets" shall mean all current assets as determined
and computed in accordance with GAAP (excluding loans to officers and
employees).
"Current Liabilities" shall mean all current liabilities as
determined and computed in accordance with GAAP.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may be amended from time to time, and, unless the context
otherwise requires, the regulations thereunder.
"Event of Default" shall mean any of those events specified in
Article V hereof.
"Financial Statements" shall mean balance sheets, income
statements, reconciliation of capital structure, statements of sources and
applications of funds together with appropriate notes and footnotes in
accordance with GAAP. Quarterly Financial Statements provided each Lender in
accordance with this Agreement may be unaudited and annual Financial Statements
shall be audited.
"GAAP" shall mean generally accepted accounting principles
consistently applied and maintained throughout the period indicated and
consistent with the prior financial practice of Borrower, except for changes
mandated by the Financial Accounting Standards Board or any similar accounting
authority of comparable standing.
"Governmental Agency" or "Government Agency" shall mean any
federal, state or local governmental or quasi-governmental agency, authority,
board, bureau, commission, department, instrumentality or public body, court,
administrative tribunal, or public utility.
"Guarantor" shall mean Frank Cretella, an individual.
"Guaranty" shall mean the Continuing Guaranty of Guarantor, in
the form attached hereto as Exhibit B.
"Insurance Policies" shall mean any of the policies of
insurance specified in Section 4.01.
"Laws" shall mean, collectively, all federal, state, and local
laws, rules, regulations, ordinances and codes.
"Liabilities" shall have the meaning usually given that term
in accordance with GAAP.
"Loan" shall mean the loan described in Article III of this
Agreement in a principal amount of $1,000,000.00.
"Loan Documents" shall mean the Note, the Guaranty, the Pledge
and Security Agreement, the Warrant, this Agreement, and such other documents as
Lenders may require Borrower to give or cause to be given to Lenders as evidence
of and/or security for the Loan and the Guaranty.
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"Loan Proceeds" shall mean all funds advanced by Lenders as a
Loan to Borrower under this Agreement.
"Maturity Date" shall mean the date which is 19 months
following the date on which the Loan is made in the event that Borrower shall
have made an offering of its common stock to the public pursuant to the
Securities Act of 1933, as amended, prior to April 15, 1998; otherwise, the
Maturity Date shall mean July 15, 1998.
"Note" shall mean a Promissory Note in the form attached
hereto as Exhibit A, made by Borrower to the order of each Lender, evidencing
the Loan.
"Organizational Documents" shall mean:
(a) Articles of Incorporation, By-Laws and current Good
Standing Certificates of Borrower.
(b) Certified resolutions of Borrower's board of directors, in
form and substance satisfactory to Lender, affirming the authority of Borrower
to borrow and guarantee the Loan and enter into the Loan Documents, and
affirming the names and signatures of the officers of Borrower authorized to
execute documents in connection with the Loan.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor established under ERISA.
"Person" shall mean an individual, corporation, partnership,
joint venture, trust or unincorporated organization or a Government Agency.
"Plan" shall mean an employee benefit plan or other plan
maintained for employees of Borrower and covered by Title IV of ERISA.
"Pledge and Security Agreement" shall mean the Pledge and
Security Agreement between Guarantor and Lenders in the form attached hereto as
Exhibit C.
"Warrant" shall mean the Warrant to purchase shares of the
Borrower's common stock in the form attached hereto as Exhibit D.
1.2. ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP consistent with those applied
in the preparation of the Financial Statements referred to in Section 4.10 and
all financial data submitted pursuant to this Agreement shall be prepared in
accordance with such principles.
1.3. USE OF DEFINED TERMS. Any defined terms used in the plural shall
include the singular and such terms shall encompass all members of the relevant
class.
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1.4. SCHEDULES AND EXHIBITS. All schedules and exhibits to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by reference.
1.5. REFERENCES. Any reference to this Agreement or any other document
shall include such document both as originally executed and as it may from time
to time be supplemented and modified. References herein to Articles, Sections
and Exhibits shall be construed as references to this Agreement unless a
different document is named.
1.6. OTHER TERMS. The term "document" is used in its broadest sense and
encompasses agreements, certificates, opinions, consents, instruments and other
written material of every kind. Unless otherwise expressly stated, the terms
"including" and "include" shall mean "including (include), without limitation."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
Borrower hereby represents and warrants to Lenders as of the date of
this Agreement, the date the Loan Proceeds are disbursed to Borrower, and each
and every date during the existence of the Loan, or any portion thereof, as the
context admits or requires, that:
2.1. BORROWER'S CAPACITY. Borrower is and shall continue to be a
corporation, duly organized and existing under the Laws of the State of
Delaware, and duly qualified to do business in any state in which the nature of
its business requires it to be so qualified.
2.2. VALIDITY OF LOAN DOCUMENTS. The Loan Documents are and shall
continue to be in all respects valid and binding on Borrower and, as applicable,
on Guarantor, according to their terms, subject to all Laws, including equitable
principles, insolvency laws, and other matters applying to creditors generally;
provided, however, that the implementation of such Laws do not and will not
affect the ultimate realization of the security afforded thereby. The execution,
delivery and performance by Borrower of the Loan Documents have been duly
authorized by all necessary action and do not and will not:
(a) Violate any provision of the Organizational Documents or
other agreements to which Borrower is a party or by which it is bound;
(b) Result in or require the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest, claim, charge, right
of others or other encumbrance of any nature (other than under the Loan
Documents) upon or with respect to any property now owned or leased or hereafter
acquired by Borrower;
(c) Violate any provision of any Laws or of any rule,
regulation, order, writ, judgment, injunction, decree, determination, or award;
or
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(d) Result in a breach of or constitute a default under, cause
or permit the acceleration of any obligation owed under, or require any consent
under any indenture or loan or credit agreement or any other agreement, lease,
or instrument to which Borrower is a party or by which Borrower or any property
of Borrower is bound or affected.
2.3. BORROWER AND GUARANTOR NOT IN DEFAULT OR VIOLATION.
Neither Borrower nor Guarantor is, or prior to full repayment of the Loan will
be, in default under or in violation of any Laws, order, rule, regulation, writ,
judgment, injunction, decree, determination or award which in any way relate to
the Loan or the Guaranty. No event has occurred and is continuing, or would
result from the making of the Loan or an advance of funds hereunder, which
constitutes an Event of Default, or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
2.4. NO APPROVALS REQUIRED. Borrower does not require any
authorization, consent, approval, order, license, exemption from, or filing,
registration, or qualification with, any Governmental Agency or any other party
in connection with the execution, delivery or performance by Borrower of the
Loan Documents.
2.5. TAX LIABILITY. Borrower has filed and shall file all tax returns
(federal, state, and local), if any, required to be filed and has paid and shall
pay all taxes shown thereon to be due and all property taxes due, including
interest and penalties, if any.
2.6. FINANCIAL STATEMENTS. All Financial Statements, tax returns and
other financial information of Borrower which have been provided to Lender
fairly present the financial position of Borrower at the respective dates of
their preparation. Since the dates of such Financial Statements, tax returns and
other financial information, there has been no material adverse change in the
financial condition of Borrower.
2.7. PENDING LITIGATION. Except as set forth on Schedule 2.07, there
are no actions, suits, or proceedings pending, or to the knowledge of Borrower
threatened, against or affecting the Borrower or Guarantor, or involving the
validity or enforceability of any of the Loan Documents or the priority of the
lien thereof, at Law or in equity, or before or by any Governmental Agency,
except actions, suits, and proceedings that are fully covered by insurance or
which, if adversely determined, would not substantially impair the ability of
Borrower and Guarantor to perform each and every one of its obligations under
and by virtue of the Loan Documents; and Borrower and Guarantor is not in
default with respect to any order, writ, injunction, decree, or demand of any
court or any Governmental Agency.
2.8. COMPLIANCE WITH ERISA. Borrower does not and shall not maintain
any employee benefit plan or other plan maintained for employees of Borrower
which is or might be deemed to be covered by Title IV of ERISA, except plans
that are or shall be in compliance with all applicable provisions of ERISA. No
Reportable Event has occurred or is continuing with respect to any Plan.
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2.9. SOLVENCY. Borrower is and shall continue to be able to pay its
debts as they mature and the realizable value of its Assets is, and at all times
that it may have obligations hereunder shall continue to be, sufficient to
satisfy any and all obligations hereunder.
2.10. PRINCIPAL PLACE OF BUSINESS. The principal place of business of
Borrower is, and will continue to be, as set forth underneath the signature of
Borrower at the end of this Agreement. In the event that Borrower hereafter
intends to move its principal place of business, it shall first give at least 30
days' prior written notice to Lender of its intention so to move, the date that
such move is anticipated, and its new address.
2.11. PERMITS. Borrower possesses all licenses, permits, franchises,
patents, copyrights, trademarks, and trade names, or rights thereto, that are
necessary to conduct its business substantially as now conducted and as
presently proposed to be conducted, and, except as set forth on Schedule 2.11,
Borrower is not in material violation of any valid rights of others with respect
to any of the foregoing.
ARTICLE III
THE LOAN
3.1. THE LOAN. Lenders agree, on the terms and conditions hereinafter
set forth, to make, or to cause one or more of its Affiliates to make, the Loan
provided for in this Article. Each Lender will participate equally in the Loan.
3.2. NOTE. The Loan shall be evidenced by a Note payable to each
Lender. Each payment under the Loan shall be evidenced and recorded by the
Lender to which such payment is made on such Lender's records, which recordation
shall be prima facie evidence of such payment; provided, however, that the
failure by a Lender to make any such recordation shall not limit or otherwise
affect the obligation of Borrower hereunder or under either Note.
3.3. INTEREST. Interest on the outstanding principal balances under the
Notes shall accrue at the rates provided for in the Notes and shall be paid as
provided for in the Notes.
3.4. USE OF PROCEEDS. The Loan Proceeds shall be used by Borrower for
the purpose of constructing and opening the American Park Restaurant in Battery
Park, New York City.
3.5. CONDITIONS PRECEDENT TO LOAN. The obligation of Lenders to make
the Loan is subject to and expressly conditioned on each of the following:
(a) Borrower, at its sole expense, shall deliver to each
Lender, at its office in Los Angeles, California, on or before the date of
advance of any Loan Proceeds, the following, in form and substance satisfactory
to such Lender, in Lender's sole opinion and judgment: (i) this Loan Agreement;
(ii) a Note; (iii) a Guaranty; (iv) a Pledge and Security Agreement; (v) a
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Warrant; (vi) certified copies of resolutions of Board of Directors of Borrower;
and (vii) such additional assignments, agreements, certificates, reports,
approvals, instruments, documents, financing statements, consents, and opinions
as such Lender may request.
(b) Review and approval by each Lender, its counsel, or both,
of true and correct copies of Borrower's Organizational Documents, and all other
Loan Documents;
(c) Review and approval by each Lender of true and correct
copies of Financial Statements of Borrower; and
(d) No suit, action, or other proceeding of material
consequence shall be pending or threatened which seeks to restrain or prohibit
the consummation of the transactions contemplated by this Agreement, or to
obtain damages or other relief in connection therewith;
3.6. LIMITATIONS ON ADVANCES AND PAYMENTS.
(a) The Loan Proceeds shall be disbursed to Borrower by wire
transferring the Loan Proceeds to or for the benefit of Borrower in accordance
with wire transfer instructions to be provided by Borrower to Lenders.
(b) The principal amount of the Notes may be prepaid upon and
subject to the terms and conditions of the Notes.
(c) Payments shall be as provided for in the Notes.
(d) Borrower hereby authorizes each Lender, if and to the
extent any payment of principal or interest or sum otherwise due hereunder is
not promptly made pursuant to such Lender's Note, and to the extent of any
obligation of Borrower to such Lender under this Agreement or any other
agreement, to charge against any account of Borrower with Lender an amount equal
to part or all of the principal costs and expenses, and accrued interest from
time to time due and payable to such Lender under the Note or otherwise. Such
Lender is under no obligation to charge such past due payments against any
account of Borrower, but may elect to do so in its sole and absolute opinion and
judgment.
3.7. GUARANTY. As further support for the payment of the Notes and
performance of this Loan Agreement, Guarantor shall guarantee payment of
interest and costs of collection pursuant to the Guaranty and, to secure its
obligations thereunder, shall enter into, together with his spouse, the Pledge
and Security Agreement, pledging to Lender as security 362,705 shares (which are
anticipated to become, pursuant to a planned reverse split of Borrower's common
stock, 200,000 shares) of common stock of Borrower.
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ARTICLE IV
BORROWER'S COVENANTS
In addition to anything else herein stated, Borrower agrees:
4.1. INSURANCE. To obtain and at all times maintain hazard and
liability insurance in amount, form and issued by a company or companies
satisfactory to Lender. The insurance is to include business interruption,
boiler and machinery and glass insurance. Said liability insurance is to
include, but not be limited to, worker's compensation and employer's liability
insurance. Upon a Lender's request, all policies or a certificate acceptable to
such Lender shall be delivered to it together with evidence of payment of
premium thereon and an agreement to give such Lender at least 30 Business Days'
prior notice of any material changes, termination, or expiration of the
policies.
4.2. RIGHT OF ENTRY. Each Lender and each Lender's employees or agents
shall have the right at all times to enter upon Borrower's premises for whatever
purpose such Lender deems appropriate, including, without limitation, inspection
of the premises and the posting of such notices and other written or printed
material thereon as such Lender may deem appropriate or desirable.
4.3. LENDER MAY EXAMINE BOOKS AND RECORDS. Each Lender shall have the
right, from time to time, acting by and through its employees or agents, to
examine the books, records, and accounting data of Borrower and Guarantor, and
to make extracts therefrom or copies thereof. Borrower shall, and shall cause
Guarantor to, promptly make such books, records, and accounting data available
to each Lender, as stated above, upon written request, and upon like request
shall promptly advise such Lender, in writing, of the location of such books,
records, and accounting data.
4.4. NO AUTOMATIC SET-OFF. The existence of the deposit or other
accounts of Borrower with either Lender and/or the fact of any sum or sums being
on deposit in any such account shall in no way constitute a set-off against or
be deemed to compensate the obligation of the Loan or any payment or performance
due under this Agreement or any of the other Loan Documents, unless and until
such Lender, by affirmative action, shall so apply said account or any portion
thereof and then only to the extent thereof so designated by such Lender.
4.5. PAYMENT OF TAXES. Borrower shall pay and discharge all taxes,
assessments, and governmental charges or levies imposed on Borrower or upon its
income or profits, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid might
become a lien or charge of a material nature upon any of its properties,
provided that Borrower shall not be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings if it maintains adequate reserves with respect thereto, which
reserves shall be segregated and maintained in such accounts and upon such
conditions as may be designated by Lender from time to time.
4.6. PRESERVATION OF EXISTENCE. Borrower shall preserve and maintain
its corporate existence, right, franchises and privileges in the State of
Delaware and qualify and remain qualified as a foreign corporation, in any
jurisdiction in which such qualification is or may be necessary, in view of
Borrower's business and operations or the ownership of its properties.
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4.7. COMPLIANCE WITH LAWS AND CONTRACTS. Except as described on
Schedule 2.11, Borrower shall comply with the requirements of all applicable
Laws and orders of any Governmental Agency, provided that if Borrower has not so
complied by the date prescribed in any such Law or order, regulation, Borrower
shall comply therewith by the date set forth in any order of the Governmental
Agency charged with the enforcement of such Law, rule or regulation if such date
is later, and comply with all contracts, agreements, indentures or instruments
by which it is bound.
4.8. MAINTENANCE OF PROPERTY. Borrower shall maintain and preserve, or
cause to be maintained and preserved, its Assets and every part thereof, in good
working order and condition, ordinary wear and tear excepted.
4.9. LIMITATION OF DISPOSITION OF ASSETS. Except for personal property
sold, leased or otherwise disposed of in the ordinary course of business,
Borrower shall not, prior to repayment in full of the Loan, convey, sell, lease
or otherwise dispose of all or substantially all of its Assets without the prior
written consent of the general partner of Lenders.
4.10. REPORTING REQUIREMENTS. So long as Borrower shall have any
obligation to Lender under this Agreement, Borrower shall deliver to the Lenders
each of the following financial statements and reports:
(a) As soon as practicable and in any event within five days
after Borrower knows or should reasonably have known of the commencement of any
action or proceeding against it or Guarantor, which action or proceeding could
materially impact the payment or performance by Borrower or Guarantor under the
Loan Documents or the Guaranty, as applicable (except actions or proceedings
seeking money judgment that are fully insured or bonded), a report of the
commencement of such action or proceeding containing a statement signed by the
principal financial officer of Borrower or by Guarantor setting forth details of
such action or proceeding and any action Borrower or such Guarantor proposes to
take with respect thereto;
(b) Within five days of the occurrence of any Event of Default
or event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default, a report regarding such Event of Default or
event setting forth details and describing any action which Borrower proposes to
take with respect thereto, signed by an officer of Borrower;
(c) Any change in name of Borrower (other than to TAM
Restaurants, Inc.) or use of any trade names or trade styles not presently used;
(d) As soon as practicable and in any event within 60 days
after the end of each quarter of each fiscal year of Borrower, the balance sheet
and a statement of earnings and surplus of Borrower as of the end of and for
each such quarter, all in reasonable detail and duly certified (subject to
year-end audit adjustments) by the principal financial officer of Borrower as
having been prepared in accordance with GAAP consistent with those applied in
the preparation of the Financial Statements referred to in Section 4.10(e),
together with a certificate of said officer stating that he has no knowledge
that an Event of Default, or any event which, with notice
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or lapse of time, or both, would constitute an Event of Default or, if an Event
of Default or such event has occurred and is continuing, a statement as to the
nature thereof and the action which Borrower proposes to take with respect
thereto and a certificate of the said officer certifying Borrower's compliance
with all covenants contained herein;
(e) As soon as available and in any event within 120 days
after the end of each fiscal year of Borrower, a copy of the Financial
Statements for such year, certified by BDO Seidman LLP or such other independent
certified public accountants of recognized standing reasonably acceptable to the
general partner of Lenders;
(f) Within 60 days after the end of each fiscal year, a
certificate of the president and principal financial officer of Borrower stating
that neither such officer has any knowledge that an Event of Default or any
event which, with notice or lapse of time, or both, would constitute an Event of
Default, has occurred and is continuing, or if, in the opinion of either such
officer, an Event of Default or such an event has occurred and is continuing, a
statement as to the nature thereof;
(g) Promptly upon receipt thereof, one copy of any other
report submitted to Borrower by independent accountants in connection with any
annual, interim or special audit made by them of the books of Borrower;
(h) Within five business days of becoming aware of any
developments or other information which may materially and adversely affect
Borrower's or Guarantor's properties, business, prospects, profits or condition
(financial or otherwise) or Borrower's or Guarantor's ability to perform this
Agreement or the other Loan Documents, telephonic or telegraphic notice
specifying the nature of such development or information and such anticipated
effect, which shall be promptly confirmed in writing; and
(i) Such other information respecting the business, properties
or the condition or operations, financial or otherwise, of Borrower as either
Lender may from time to time reasonably request.
4.11. RESTRICTION ON SENIOR DEBT. Borrower shall not, without the prior
written consent of the general partner of Lenders, incur any additional
indebtedness not existing on the date hereof, unless (a) such indebtedness is
indebtedness to trade creditors incurred in the ordinary course of business, (b)
such indebtedness is expressly subordinated in right of payment to the Loan
pursuant to an instrument of subordination satisfactory in form and substance to
Lenders or (c) all of the proceeds of each indebtedness are used to prepay, in
whole or in part, the Loan.
4.12. DIRECTORSHIP. So long as the Loan or any portion thereof is
outstanding or Lenders (and their affiliates) hold, or have the right to require
upon exercise of Warrants or any other warrants, an aggregate of at least
362,705 shares (as such number shall be adjusted to account for the planned
reverse stock split, or any other stock split or similar action) of common stock
of Borrower, management of Borrower shall use its best efforts to assure that a
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representative designated by the general partner of Lenders is nominated and
elected to the Board of Directors of Borrower. Borrower acknowledges that
Guarantor (and his spouse) shall vote all of their shares of common stock of
Borrower in favor of the election of such designee. Kayne Anderson's initial
designee shall be Ken Harris and any subsequent designee shall be an individual
reasonably acceptable to Borrower.
ARTICLE V
EVENTS OF DEFAULT
An "Event of Default" shall be deemed to have occurred hereunder if:
5.1. DEFAULT UNDER LOAN DOCUMENTS. Borrower shall fail to pay principal
or interest, or both, when due under the terms of either Note; or Borrower shall
fail to perform or observe any term, covenant, or agreement contained in this
Agreement or in any of the other Loan Documents, which failure may be cured by
the payment of money, and, in any of such events, such failure shall continue
for a period of 10 days from the date such payment or performance was due; or
Borrower shall fail to perform or observe any term, covenant or agreement
contained in this Agreement or in any of the other Loan Documents, which failure
cannot be cured by the payment of money and, unless otherwise provided in this
Agreement, such failure shall continue for a period of 30 days after either
Lender shall have given written notice to Borrower specifying such default; or
5.2. BREACH OF WARRANTY. Any warranties or representations made or
agreed to be made in this Agreement or in any of the other Loan Documents shall
be breached in any material respect or shall prove to be false or misleading in
any respect when made; or
5.3. LITIGATION AGAINST BORROWER OR GUARANTOR. Any suit shall be filed
against Borrower or Guarantor, which, if adversely determined, could
substantially impair the ability of Borrower or Guarantor to perform any or all
of its obligations under and by virtue of this Agreement or any of the other
Loan Documents, unless Borrower or Guarantor furnishes to Lenders an officer's
certificate certifying a resolution of Borrower's Board of Directors or an
opinion of legal counsel, to the satisfaction of Lenders (and their counsel),
that, in the judgment of such Board of Directors or legal counsel, as
applicable, the suit is essentially without merit; or
5.4. BANKRUPTCY. Borrower or Guarantor shall fail to pay its debts as
they become due, or shall make an assignment for the benefit of its creditors,
or shall admit, in writing, its inability to pay its debts as they become due,
or shall file a petition under any chapter of the Federal Bankruptcy Code or any
similar law, now or hereafter existing, or shall become "insolvent" as that term
is generally defined under the Federal Bankruptcy Code, or shall in any
involuntary bankruptcy case commenced against it file an answer admitting
insolvency or inability to pay its debts as they become due, or shall fail to
obtain a dismissal of such case within 30 calendar days after its commencement
or convert the case from one chapter of the Federal
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Bankruptcy Code to another chapter, or be the subject of an order for relief in
such bankruptcy case, or be adjudged a bankrupt or insolvent, or shall have a
custodian, trustee, or receiver appointed for, or have any court take
jurisdiction of, its properties, or any part thereof, in any voluntary or
involuntary proceeding, including, but not limited to, those for the purpose of
reorganization, arrangement, dissolution, or liquidation, and such custodian,
trustee, or receiver shall not be discharged, or such jurisdiction shall not be
relinquished, vacated, or stayed within 30 days after the appointment; or
5.5. BORROWER STATUS. Without each Lender's prior written consent,
Borrower shall be liquidated, dissolved, or fail to maintain its status as a
going concern; or
5.6. ATTACHMENT. Any proceeding shall be brought, the object of which
is that any part of either Lender's commitment to make the advances of Loan
Proceeds hereunder shall at any time be subject or liable to attachment or levy
by any creditor of Borrower; or
5.7. MISREPRESENTATION AND/OR NON-DISCLOSURE. Any statements or
disclosures made by Borrower or Guarantor in order to induce either Lender to
make the Loan and enter into this Agreement shall have been material
misrepresentations or Borrower or Guarantor shall have failed to disclose any
material fact; or
5.8. ERISA. Any of the following events occur or exist with respect to
Borrower:
(a) Any Reportable Event with respect to any Plan;
(b) The filing under Title IV of ERISA of a notice of intent
to terminate any Plan or the termination of any Plan;
(c) Any event or circumstance that might constitute grounds
entitling the PBGC to institute proceedings for the termination of, or for the
appointment of a trustee to administrate any Plan, or the institution by the
PBGC of any such proceeding; or
5.9. FINANCIAL CONDITION. There shall be any material adverse changes
in Borrower's or Guarantor's financial condition.
ARTICLE VI
REMEDIES
6.1. CEASE PAYMENT AND/OR ACCELERATE. Upon, or at any time after, the
occurrence of an Event of Default or upon the occurrence of a default in any
other joint and/or several obligation or obligations of the Borrower or
Guarantor, to either Lender, Lenders shall have no obligation to make any
further advances of Loan Proceeds, all sums disbursed or advanced by Lenders and
all accrued and unpaid interest thereon shall, at the option of Lenders, become
immediately due and payable, Lenders shall be released from any and all
obligations to
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Borrower under the terms of this Agreement, and Lenders shall be entitled to
collect interest at the default rate specified in the Notes and to require
Borrower to make the monthly payments specified in the Notes.
6.2. RIGHTS AND REMEDIES NON-EXCLUSIVE. In addition to the specific
rights and remedies hereinabove mentioned, each Lender shall have the right to
avail itself of any other rights or remedies to which it may be entitled, at Law
or in equity, including, but not limited to, the right to realize upon any or
all of its security and/or the right to enforce the Guaranty, and to do so in
any order. Furthermore, the rights and remedies set forth above are not
exclusive, and each Lender may avail itself of any individual right or remedy
set forth in this Agreement, or available at Law or in equity, without utilizing
any other right or remedy. Notwithstanding the foregoing, Lender shall forbear
from availing itself of any remedies to which it may be entitled so long as the
Borrower continues to timely pay to both Lenders interest payments at the
default rate and the monthly payments referred to in Section 6.01.
ARTICLE VII
GENERAL CONDITIONS AND MISCELLANEOUS
7.1. NONLIABILITY OF LENDERS. Borrower acknowledges and agrees that by
accepting or approving anything required to be observed, performed, fulfilled,
or given to Lenders pursuant to this Agreement or the other Loan Documents,
including any certificate, Financial Statement, appraisal or insurance policy,
Lenders shall not be deemed to have warranted or represented the sufficiency,
legality, effectiveness or legal effect of the same, or of any term, provision,
or condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty or representation to anyone with respect thereto by
Lenders.
7.2. NO THIRD PARTIES BENEFITED. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights, and duties of
Borrower and Lenders in connection with the Loan. It shall be deemed a
supplement to the Notes and the other Loan Documents, and shall not be construed
as a modification of the Notes or the other Loan Documents, except as provided
herein. It is made for the sole protection of Borrower and Lenders, and each
Lender's successors and assigns. No other person shall have any rights of any
nature hereunder or by reason hereof or the right to rely hereon. In the event
of a conflict between this Agreement and the Notes, the provisions of the Notes
shall control.
7.3. INDEMNITY BY BORROWER. Borrower hereby indemnifies and agrees to
hold harmless each Lender and its partners, directors, officers, agents and
employees (individually and collectively the "Indemnitee(s)") from and against:
(a) Any and all claims, demands, actions or causes of action
that are asserted against any Indemnitee by any person if the claim, demand,
action or cause of action, directly or indirectly, relates to a claim, demand,
action or cause of action that the person has or asserts against Borrower; and
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(b) Any and all liabilities, losses, costs or expenses
(including court costs and attorneys' fees) that any Indemnitee suffers or
incurs as a result of the assertion of any claim, demand, action or cause of
action specified in this Section 7.03.
7.4. TIME IS OF THE ESSENCE. Time is of the essence of this Agreement
and of each and every provision hereof. The waiver by either Lender of any
breach or breaches hereof shall not be deemed, nor shall the same constitute, a
waiver of any subsequent breach or breaches.
7.5. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding on and
inure to the benefit of Borrower and Lenders and their respective successors and
assigns, except that Borrower may not assign its rights hereunder or any
interest herein without the prior written consent of each Lender. Each Lender
shall have the right to assign its rights under this Agreement or the other Loan
Documents and to grant participations in the Loan to others, but all waivers or
abridgements of Borrower's obligations that may be granted from time to time by
such Lender in writing, shall be binding upon such assignees or participants.
7.6. EXECUTION IN COUNTERPARTS. This Agreement and any other Loan
Document, except the Notes, may be executed in any number of counterparts, and
any party hereto or thereto may execute any counterpart, each of which, when
executed and delivered, will be deemed to be an original, and all of which
counterparts of this Agreement or any other Loan Document, as the case may be,
taken together will be deemed to be but one and the same instrument. The
execution of this Agreement or any other Loan Document by any party hereto or
thereto will not become effective until counterparts hereon or thereof, as the
case may be, have been executed by all the parties hereto or thereto.
7.7. INTEGRATION; AMENDMENTS; CONSENTS. This Agreement, together with
the documents referred to herein, constitutes the entire agreement of the
parties touching upon the subject matter hereof, supersedes any prior
negotiations or agreements on such matter, and, in particular, supersedes the
commitment letter or other correspondence or communication from Lenders (or
their general partner) to Borrower. No amendment, modification or supplement of
any provision of this Agreement or any of the other Loan Documents shall be
effective unless in writing, signed by Lenders and Borrower; and no waiver of
any of Borrower's or Guarantor's obligations under this Agreement or any of the
other Loan Documents or consent to any departure by Borrower or Guarantor
therefrom shall be effective unless in writing, signed by Lenders, and then only
in the specific instance and for the specific purpose given.
7.8. COSTS, EXPENSES AND TAXES. Borrower shall pay to each Lender, on
demand:
(a) The attorneys' fees and out-of-pocket expenses incurred by
such Lender in connection with the negotiation, preparation, execution, delivery
and administration of this Agreement and any other Loan Document and any matter
related thereto;
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(b) The costs and expenses of such Lender in connection with
the enforcement of this Agreement and any other Loan Document and any matter
related thereto, including the fees and out-of-pocket expenses of any legal
counsel (including those of in-house counsel), independent public accountants,
appraisers and other outside experts retained by such Lender; and
(c) All costs, expenses, fees, premiums and other charges
relating to or arising from this Agreement or any of the other Loan Documents or
any transactions contemplated hereby or thereby or the compliance with any of
the terms and conditions hereof or thereof.
All sums payable under this Section 7.08 may be deducted from the Loan
Amount in the discretion of Lenders.
7.9. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties of Borrower contained herein or in any other Loan Document shall
survive the making of the Loan and the execution and delivery of the Notes, and
are material and have been or will be relied upon by Lenders, notwithstanding
any investigation made by Lenders or on behalf of Lenders. For the purpose of
this Agreement, all statements contained in any certificate, agreement,
Financial Statement, or other writing delivered by or on behalf of Borrower
pursuant hereto or to any other Loan Document or in connection with the
transactions contemplated hereby or thereby shall be deemed to be
representations and warranties of Borrower contained herein or in the other Loan
Documents, as the case may be.
7.10. NOTICES. All notices, requests, demands, directions, and other
communications provided for hereunder and under any other Loan Document (a
"Notice"), must be in writing and must be mailed, telegraphed, delivered or sent
by "fax," telex, cable or other form of electronic written communication to the
appropriate party at its respective address set forth below or, as to any party,
at any other address as may be designated by it in a written notice sent to the
other parties in accordance with this Section.
Any notice given by "fax," telegram, telex, cable or other form of
electronic written communication must be confirmed within 48 hours by letter
mailed or delivered to the appropriate party at its respective address. If any
notice is given by mail, it will be effective three (3) calendar days after
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being deposited in the mails with first-class or air mail postage prepaid; if
given by telegraph or cable, when delivered to the telegraph company with
charges prepaid; if given by "fax," telex or other form of electronic written
communication, when sent; or if given by personal delivery, when delivered.
Such notices will be given to the following:
To Lenders: c/o Kayne Anderson Investment Management, Inc.
1800 Avenue of the Stars, Second Floor
Los Angeles, California 90067
Attn: David Shladovsky, General Counsel
Fax: (310) 284-6444
To Borrower: TAM Restaurant Holding Corp.
1163 Forest Avenue
Staten Island, New York 10310
Attention: Frank Cretella
Fax: (718) 448-3872
7.11. FURTHER ASSURANCES. Borrower shall, at its sole expense and
without expense to Lenders, do, execute and deliver such further acts and
documents as Lender from time to time may reasonably require for the purpose of
assuring and confirming unto Lender the rights hereby created or intended, now
or hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Documents, or for assuring the validity of
any security interest.
7.12. GOVERNING LAW. The Loan shall be deemed to have been made in
California, and this Agreement and the other Loan Documents shall be governed by
and construed and enforced in accordance with the Laws of the State of
California.
7.13. SEVERABILITY OF PROVISIONS. If any provision of this Agreement or
of any of the other Loan Documents is held to be inoperative, unenforceable or
invalid, such provision shall be inoperative, unenforceable or invalid without
affecting the remaining provisions; this Agreement and the other Loan Documents
shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement or the other Loan
Documents; and to this end the provisions of this Agreement and the other Loan
Documents are declared to be severable, remaining in full force and effect.
7.14. JOINT AND SEVERAL OBLIGATIONS. If this Agreement is executed by
more than one person as Borrower, the obligations of each of such persons
hereunder shall be joint and several obligations.
7.15. CONSTRUCTION. Whenever the context of this Agreement requires,
the singular shall include the plural and the masculine gender shall include the
feminine and/or neuter.
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7.16. HEADINGS. Article and Section headings in this Agreement are
included for convenience of reference only and are not part of this Agreement
for any other purpose.
IN WITNESS WHEREOF, Borrower and Lenders have hereunto caused this
Agreement to be executed on the date first above written.
Lenders:
ARBCO ASSOCIATES, L.P., a California limited partnership KAYNE, ANDERSON
NON-TRADITIONAL INVESTMENTS, L.P., a California limited partnership
By: KAYNE ANDERSON INVESTMENT MANAGEMENT, INC., a Nevada corporation,
General Partner
By: /s/ Richard A. Kayne
------------------------
Name: Richard A. Kayne
Title: President
Borrower:
TAM RESTAURANT HOLDING CORP., a Delaware corporation
By: /s/ Frank Cretella
-----------------------
Name: Frank Cretella
Title: President and Chief Executive Officer
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SCHEDULE 2.07
In July 1996, Lisa Lea, on behalf of her infant daughter Monicea Lea,
and herself individually, filed a Notice of Claim against The City of New York
and New York City Department of Parks alleging personal injury caused to the
infant Monicea Lea resulting from a slip and fall on or near the premises of the
Loeb Boathouse. The claimant has stated a claim for damages of $10,000,000. This
matter is in the information gathering stage.
In February 1997, a lawsuit entitled Sharon Porto and Salvatore Porto
v. Bay Landing Restaurant Corp. and Lundy Bros. Restaurant, was filed in the
Supreme Court of New York, County of Kings. The plaintiffs allege personal
injury caused to Sharon Porto as a result of a slip and fall at Lundy Bros.
Restaurant in September 1996, and seek damages in the aggregate of $3,300,000.
The Company is vigorously defending the lawsuit which is in its preliminary
stages.
In June 1997, a lawsuit entitled Ralph Guiffre and Lisa Guiffre v.
Lundy's Management Corporation, Bay Landing Restaurant Corp., Sheepshead
Restaurant Associates, Inc., Ralph Attanasia and Showcase Contracting
Corporation, was filed in the Supreme Court of New York, County of Kings. The
plaintiffs allege personal injury caused to Ralph Guiffre while performing
construction work at the Lundy's Bros. Restaurant facility and seek damages in
the aggregate amount of $11,000,000. The Company is vigorously defending the
lawsuit which is in its preliminary stages.
In August 1997, a lawsuit entitled Gloria Gentile and Anthony Gentile
v. The City of New York and Tam Restaurant Group, Inc., was filed in the Supreme
Court of New York, New York County. The plaintiffs allege personal injury to
Gloria Gentile resulting from a slip and fall while attending an engagement at
the Loeb Boathouse and seek damages in the aggregate amount of $2,500,000. The
Company is vigorously defending the lawsuit which is in its preliminary stages.
The Company is unable at this time to evaluate the likelihood of an
unfavorable outcome or to estimate the range of potential loss with respect to
any of such lawsuits.
SCHEDULE 2.11
The Company's license agreement with the New York City
Department of Parks (the "Parks Department") to operate The Boathouse imposes
certain requirements and operating restrictions on the Company, such as minimum
hours of operation. Although certain aspects of the Company's operating
practices are not in conformity with the terms of such license, the Company
believes that the Parks Department is aware of its operating practices and the
Parks Department has not objected to the variances from the terms of such
license.
SCHEDULE OF EXHIBITS
Exhibit Document
A Promissory Note
B Continuing Guaranty
C Pledge and Security Agreement
D Warrant
EXHIBIT A
NOTE
$500,000 October 31, 1997
Los Angeles, CA
TAM RESTAURANT HOLDING CORP., a Delaware corporation (the "Company"),
for value received, hereby promises to pay to the order of [Lender] (" ")
or its assignes, at its principal office at Los Angeles, California, the
principal sum of Five Hundred Thousand Dollars ($500,000) (or such lesser amount
as may result from any repayment thereof), in lawful money of the United States
and prior to noon, Los Angeles time, in funds which are immediately available in
Los Angeles, California, payable on the Maturity Date, as such term is defined
in the Loan Agreement, dated as of October 31, 1997, between the Company and
each of Arbco Associates, L.P. and Kayne, Anderson Non-Traditional Investments,
L.P. (the "Loan Agreement"), and to pay interest on the unpaid principal amount
of this Note from the date hereof, in like money and funds, at said office, on
the last day of each March, June, September and December commencing December 31,
1997, at a rate per annum (computed on the basis of a year of 365 days or 366
days, as the case may be) of ten percent (10%).
If any payment to be made by the Company under this Note shall become
due on a Saturday, Sunday or business holiday under the laws of the States of
New York or California, such payment shall be made on the next succeeding
business day, and any such extension of time shall be included in computing any
interest in respect of such payment. The Company may at its option make
prepayments on this Note before maturity as provided in the Loan Agreement.
This Note is made pursuant to the Loan Agreement, and is entitled to
the security and benefits therein provided.
Upon the occurrence of an Event of Default specified in the Loan
Agreement, as at any time amended, the principal hereof and accrued interest
hereon may be declared to be and shall thereupon forthwith become due and
payable, all as provided in the Loan Agreement, as at any time amended, and
following such an Event of Default, so long as it is continuing, Borrower shall
(a) pay to lender interest on the unpaid principal amount of this Note and any
accrued and unpaid interest thereon at the rate of fifteen percent (15%) per
annum on the regular interest payment dates and (b) pay to Lender on the first
day of each month an amount, to be applied to accrued interest and then to
principal, equal to twenty-five percent (25%) of its American Park Restaurant
Operating Profit for the previous month.
This Note shall be construed and enforced in accordance with and
governed by the laws of the State of California. The Company agrees to pay costs
of collection and reasonable attorney's fees in case default is made in the
payment of this Note.
TAM RESTAURANT HOLDING CORP.
By:
--------------------------------------------
Name: Frank Cretella
Title: President & Chief Executive Officer
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EXHIBIT D
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. __________ Number of Shares determined
as set forth herein
THIS WARRANT AND THE SHARES OF COMMON STOCK UNDERLYING THIS WARRANT
(COLLECTIVELY, THE "SECURITIES") HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE OR FOREIGN SECURITIES
LAWS AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND ALL SUCH APPLICABLE
LAWS, OR, IN THE WRITTEN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUER OF THE SECURITIES, SUCH OFFER, SALE, OR TRANSFER, PLEDGE OR
HYPOTHECATION IS IN COMPLIANCE THEREWITH.
AS PARTIAL CONSIDERATION FOR LOAN PROCEEDS RECEIVED BY TAM
RESTAURANT HOLDING CORP., (THE "COMPANY") FROM KAYNE ANDERSON
INVESTMENT MANAGEMENT, INC. ("KAIM"), the Company hereby certifies that KAIM,
or its permitted assigns (the "Holder"), subject to and in accordance with the
terms and conditions of this Warrant, is or are entitled to purchase the
Underlying Common Shares from the Company at the Exercise Price.
OTHER TERMS AND CONDITIONS
1. Exercise of Warrant.
(a) Subject to the terms and conditions set forth herein, the
Warrant is exercisable on or after the Exercise Date at the Exercise
Price.
(b) This Warrant is exercisable other than on the Exercise
Date only upon the occurrence of a Triggering Event.
(c) The Warrant shall terminate and become void as of the
close of business on the Expiration Date.
(d) In order to exercise this Warrant, the Holder must
surrender this Warrant (with the subscription form at the end hereof
duly executed) at the address set forth in Section 10(a) hereof,
together with proper payment of the Aggregate Warrant Price, or the
proportionate part thereof if this Warrant is exercised in part.
Payment for the Underlying Common Shares shall be made by certified or
official bank check, payable to the order of the Company. If this
Warrant is exercised in part, this Warrant must be exercised for a
number of whole shares of the Common Stock, and the Holder is entitled
to receive a new Warrant covering the number of Underlying Common
Shares in respect
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of which this Warrant has not been exercised and setting forth the
proportionate part of the Aggregate Warrant Price applicable to such
Underlying Common Shares. Upon such exercise and surrender of this
Warrant, the Company will (i) issue a certificate or certificates in
the name of the Holder for the number of whole shares of the Common
Stock to which the Holder shall be entitled and, if this Warrant is
exercised in whole, in lieu of any fractional share of the Common Stock
to which the Holder shall be entitled, pay cash equal to the fair value
of such fractional share (determined in such reasonable manner as the
Board of Directors of the Company shall determine), and (ii) deliver
the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is
exercised in part, pursuant to the provisions of this Warrant.
2. Certain Defined Terms
As used in this Warrant, the following terms shall have the following
meanings:
"Aggregate Warrant Price" means the aggregate purchase price payable
hereunder, being an amount equal to the product of the Exercise Price multiplied
by the number of Underlying Common Shares.
"Common Stock" means the Common Stock, par value $.0001 per share, of
the Company and any other capital stock of the Company into which such common
stock may be converted or reclassified or that may be issued in respect of, in
exchange for, or in substitution of, such common stock by reason of any stock
splits, stock dividends, distributions, mergers, consolidations or other like
events.
"Exercise Price" means (i) if the Warrants are exercised prior to an
Initial Public Offering, $5.00 per share of Underlying Common Shares, provided,
however, if, thereafter, the Initial Public Offering Price of Common Shares is
less than $5.00 per share, then a holder of Underlying Common Shares shall be
entitled to receive from the Company at the time of the Initial Public Offering
an amount which equals the product of (A) the difference of $5.00 less the
Initial Public Offering Price multiplied by (B) the number of Underlying Common
Shares owned by such holder; or (ii) if the Warrants are exercised subsequent to
an Initial Public Offering, an amount per share of Underlying Common Shares
equal to the Initial Public Offering Price.
"Expiration Date" means the fifth anniversary of the Funding Date.
"Exercise Date" means the earliest of (i) 365 days following the
Funding Date, (ii) 90 days following an Initial Public Offering, or (iii) the
day on which a Triggering Event occurs.
"Funding Date" means the day on which the Company makes the loan
contemplated under the Loan Agreement.
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"Initial Public Offering" means (i) the first time a registration
statement filed under the Securities Act with the SEC respecting an offering of
Common Stock (or securities convertible into, or exchangeable for, Common Stock
or rights to acquire Common Stock or such securities), is declared effective and
the securities so registered are issued and sold.
"Initial Public Offering Price" mean the price per share of Common
Stock paid to the Company in an Initial Public Offering.
"Loan Agreement" means the Loan Agreement dated as of October 31, 1997
between the Company and each of Arbco Associates, L. P. and Kayne, Anderson
Non-Traditional Investments, L.P.
"Planned Reverse Split" means the reverse split of Common Stock at a
rate of 1 to 1.8135268 shares expected to be effected by the Company at or about
the time of its Initial Public Offering.
"SEC" means the United States Securities and Exchange Commission.
"Triggering Event" means (i) the voluntary or involuntary bankruptcy or
insolvency of the Company or the approval by its stockholders of its
dissolution, liquidation or winding up; or (ii) any merger, consolidation,
statutory exchange, sale or conveyance described in Section 4(c) below.
"Underlying Common Shares" means a number of shares of Common Stock
equal to the quotient of $1 million divided by the Exercise Price.
3. Reservation of Underlying Common Shares.
The Company agrees that, prior to the Expiration Date, the Company will
at all times have authorized and in reserve, and will keep available, solely for
issuance or delivery upon the exercise of this Warrant, the Underlying Common
Shares of Common Stock and such amount of other securities and properties as
from time to time shall be deliverable to the Holder upon the exercise of this
Warrant, free and clear of all restrictions on sale or transfer (except such as
may be imposed under applicable federal and state securities laws) and free and
clear of all preemptive rights and all other rights to purchase securities of
the Company.
4. Protection Against Dilution.
(a) If, at any time or from time to time after the date of
this Warrant, the Company shall distribute to the holders of its
outstanding Common Stock, (i) securities, other than shares of Common
Stock, or (ii) property, other than cash dividends, without payment
therefor, with respect to Common Stock, then, and in each such case,
the Holder, upon the exercise of this Warrant, shall be entitled to
receive the securities and property which the Holder would have held on
the date of such exercise if, on the date of this Warrant, the Holder
had been the holder of record of the number of shares of the
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Common Stock subscribed for upon such exercise and, during the period
from the date of this Warrant to and including the Exercise Date, had
retained such shares and the securities and properties receivable by
the Holder during such period. Notice of each such distribution shall
be forthwith mailed to the Holder.
(b) If, at any time or from time to time after the date of
this Warrant, the Company shall (i) pay a dividend or make a
distribution on its capital stock in shares of Common Stock, (ii)
subdivide its outstanding shares of Common Stock into a greater number
of shares, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) issue by reclassification of its
Common Stock any shares of capital stock of the Company, the Exercise
Price in effect immediately prior to such action shall be adjusted so
that the Holder of any Warrant thereafter exercised shall be entitled
to receive the number of shares of Common Stock or other capital stock
of the Company which he would have owned or been entitled to receive
immediately following the happening of any of the events described
above had such Warrant been exercised immediately prior thereto.
Notwithstanding the foregoing, no adjustment shall be made for the
Planned Reverse Split, which has been accounted for and is reflected in
the terms of this Warrant, provided, however, that if the Planned
Reverse Split is consummated at a ratio less favorable to the Holder,
an adjustment shall be made pursuant to this Section 4(b) to provide
Holder with economically equivalent rights. An adjustment made pursuant
to this Section 4(b) shall become effective immediately after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a
subdivision, combination or reclassification. If, as a result of an
adjustment made pursuant to this Section 4(b), the holder of any
Warrant thereafter surrendered for exercise shall become entitled to
receive shares of two or more classes of capital stock or shares of
Common Stock and other capital stock of the Company, the Board of
Directors (whose determination shall be conclusive and shall be
described in a written notice to the Holder of any Warrant promptly
after such adjustment) shall determine the allocation between or among
shares of such classes of capital stock or shares of Common Stock and
other capital stock.
(c) In case of any consolidation or merger to which the
Company is a party other than a merger or consolidation in which the
Company is the continuing corporation, or in case of any sale or
conveyance to another entity of the property of the Company as an
entirety or substantially as an entirety, or in the case of any
statutory exchange of securities with another entity (including any
exchange effectuated in connection with a merger of any other
corporation with the Company), the Holder of this Warrant shall have
the right thereafter to convert such Warrant into the kind and amount
of securities, cash or other property which he would have owned or have
been entitled to receive immediately after such consolidation, merger,
statutory exchange, sale or conveyance had this Warrant been exercised
immediately prior to the effective date of such consolidation, merger,
statutory exchange, sale or conveyance and in any such case, if
necessary, appropriate adjustment shall be made in the application of
the provisions set forth in this Section 4 with respect to the rights
and interests thereafter of the Holder of this Warrant to the end that
the provisions set forth in this Section 4 shall thereafter
correspondingly
-6-
be made applicable, as nearly as may reasonably be, in relation to any
shares of stock or other securities or property thereafter deliverable
on the exercise of this Warrant. In the event of a triangular merger in
which the Company is the surviving corporation, the right to purchase
Underlying Common Shares hereunder shall terminate on the date of such
merger and thereupon this Warrant shall become null and void but only
if the controlling corporation shall agree to substitute for this
Warrant its warrant which entitles the holder thereof to purchase upon
its exercise the kind and amount of shares and other securities and
property which the holder would have owned or been entitled to receive
had this Warrant been exercised immediately prior to such merger. The
above provisions only apply to successive consolidations, mergers,
statutory exchanges, sales or conveyances. Notice of any such
consolidation, merger, statutory exchange, sale or conveyance, and of
said provisions so proposed to be made, shall be mailed to the Holder
not less than 20 days prior to such event. A sale of all or
substantially all of the assets of the Company for a consideration
consisting primarily of securities shall be deemed a consolidation or
merger for the foregoing purposes.
(d) Anything in this Section 4 to the contrary
notwithstanding, the Company shall be entitled to make such reductions
in the Exercise Price as it in its discretion shall deem to be
advisable in order that any stock dividend, subdivision of shares or
distribution of rights to purchase stock or securities convertible or
exchangeable for stock hereafter made by the Company to its
shareholders shall not be taxable.
(e) Whenever the Exercise Price is adjusted as provided in
this Section 4 and upon any modification of the rights of the Holder of
this Warrant in accordance with Section 4, the Company shall, at its
own expense, within 10 days of such adjustment or modification, deliver
to the Holder of this Warrant a certificate of the Principal Financial
Officer of the Company setting forth the Exercise Price and the number
of Underlying Common Shares after such adjustment or the effect of such
modification, a brief statement of the facts requiring or permitting
such adjustment or modification and the manner of computing the same.
In addition, within thirty 30 days of the end of the Company's fiscal
year following any such adjustment or modification, the Company shall,
at its own expense, deliver to the Holder of this Warrant a certificate
of a firm of independent public accountants of recognized standing
selected by the Board of Directors (who may be the regular auditors of
the Company) setting forth the same information as required by such
Principal Financial Officer certificate.
(f) If the Board of Directors of the Company shall declare any
dividend or other distribution in cash with respect to the Common
Stock, other than out of earned surplus, the Company shall mail notice
thereof to the Holder not less than 10 days prior to the record date
fixed for determining shareholders entitled to participate in such
dividend or other distribution.
-7-
5. Fully Paid Stock; Taxes.
The Company agrees that the shares of the Common Stock represented by
each and every certificate for Underlying Common Shares delivered on the
exercise of this Warrant in accordance with the terms hereof shall, at the time
of such delivery, be validly issued and outstanding, fully paid and
non-assessable and not subject to preemptive rights or other contractual rights
to purchase securities of the Company, and the Company will take all such
actions as may be necessary to assure that the par value or stated value, if
any, per share of the Common Stock is at all times equal to or less than the
then Exercise Price. The Company further covenants and agrees that it will pay,
when due and payable, any and all federal and state stamp, original issue or
similar taxes which may be payable in respect of the issue of any Underlying
Common Shares or certificate therefor.
6. Registration Under Securities Act of 1933.
(a) (i) The Company agrees that if, at any time, the Company
proposes to file with the SEC a registration statement (other than a
registration statement for the Initial Public Offering or a
registration statement on Form S-4 or S-8 or any corresponding future
forms, or any other form for a limited purpose which excludes
registration of the Underlying Common Shares, or any registration
statement covering only securities proposed to be issued in exchange
for securities or assets of another corporation) in connection with the
registration of its Common Stock, the Company shall give written notice
of such proposed filing to all Holders of the Warrants and/or the
Underlying Common Shares and shall use its reasonable efforts to
include in such filing any proposed disposition of the Underlying
Common Shares upon receipt by the Company of a written request
therefor, given within 10 days after such notice is given by the
Company, setting forth the facts with respect to such proposed
disposition and all other information with respect to such person
necessary to be included in such registration statement; provided that
the Company shall have the right to postpone or withdraw any
registration of its Common Stock (and the corresponding registration
effected pursuant to this Section 5) without obligation to any such
Holder (the "Piggy-Back Registration").
(ii) From time to time, the Holder may make a written
request for registration under the Securities Act of its Underlying
Common Shares (a "Demand Registration"). Any such request will specify
the number of Underlying Common Shares proposed to be sold (the
"Included Shares") and will also specify the intended method of
disposition thereof. Upon receipt of such request for registration, the
Company shall use its reasonable best efforts to effect, at the
earliest possible date, such registration under the Securities Act of
the Included Shares.
(b) Notwithstanding the foregoing, the Company shall not be
required to include any Underlying Common Shares in an underwritten
public offering unless each such Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriter(s)
selected by it, and then only in such quantity, if any, as will not, in
the opinion of the managing underwriter, jeopardize or be detrimental
to the success
-8-
of the offering (including price) by the Company. In the event that the
managing underwriter advises the Company in writing that the total
amount of securities, including the Underlying Common Shares, requested
to be included in such offering by all persons having registration
rights with respect thereto exceeds the amount that the managing
underwriter believes can be offered without jeopardizing or being
detrimental to the success of such offering, the quantity of securities
that the managing underwriter believes can be offered without causing
such adverse effect shall be allocated first to the Company, then to
the requesting Holders of Warrants and/or Underlying Common Shares and
any other holders of Common Stock having registration rights with
respect thereto as of the date hereof, and thereafter pro rata among
other security holders of the Company possessing similar registration
rights in accordance with their relative holdings, it being agreed to
by the Company that no person who does not possess such registration
rights shall be allowed to participate in the offering to the exclusion
of any Underlying Common Shares requested to be included by any Holder,
and such Underlying Common Shares shall be offered and sold on the same
terms and conditions as the shares of Common Stock, if any, being
offered by the Company in such offering. In the event that any of the
Underlying Common Shares are registered in connection with the
registration of an underwritten public offering (other than the Initial
Public Offering) but are not included in such underwritten public
offerings which are excluded from the offering shall be withheld from
the market by each such Holder for a period, not to exceed 180 days,
which the managing underwriter reasonably determines is necessary in
order to effect the underwritten public offering. The Company shall use
its best efforts to keep effective any registration statement covering
any of the Underlying Common Shares not subject to or included in an
underwritten public offering for a period of 90 days after the later of
the effective date of such registration statement or the date, if any,
that the managing underwriter specifies to be the date upon which such
Underlying Common Shares may be distributed; provided that the Company
may keep such registration statement effective for a shorter period if
all the Holders whose Underlying Common Shares were included in such
registration statement have notified the Company in writing that the
distribution of their Underlying Common Shares has been completed.
(c) Whenever the Company is required pursuant to the
provisions of this Section 5 to include Underlying Common Shares in a
registration statement, the Company shall (i) furnish each Holder of
any such Underlying Common Shares and each underwriter of such
Underlying Common Shares with such copies of the prospectus, including
the preliminary prospectus, conforming to the Securities Act (and such
other documents as each such Holder or each such underwriter may
reasonably request) in order to facilitate the sale or distribution of
the Underlying Common Shares, (ii) use its best efforts to register or
qualify such Underlying Common Shares under the blue sky laws (to the
extent applicable) of such jurisdiction or jurisdictions as the Holders
of any such Underlying Common Shares and each underwriter of Underlying
Common Shares being sold by such Holders shall reasonably request and
(iii) take such other actions as may be reasonably necessary or
advisable to enable such Holders and such underwriters to consummate
the sale or distribution in such jurisdiction or jurisdictions in which
such Holders shall have reasonably requested that the Underlying Common
Shares be sold.
-9-
Notwithstanding the foregoing, the Company shall not be required to
register the Underlying Common Shares or perfect any exemption for the
offering and sale of the Underlying Common Shares under (i) the
securities laws of any foreign jurisdiction, (ii) the securities laws
of any State, territory or possession of the United States in the event
that registration or the perfection of any exemption under the law of
any such State, territory or possession would, in the opinion of the
Company, result in the imposition of unreasonable restrictions on the
Company or its shareholders, officers, directors or employees or (iii)
the securities laws of any state, territory or possession of the United
States which would require the Company to file a general consent to
service of process to qualify as a foreign corporation to do
businesterritory or possession.
(d) To the extent permitted by applicable law, the Company
shall pay all expenses incurred in connection with any registration or
other action pursuant to the provisions of this Section, including the
attorneys' fees (including those of in-house counsel) and expenses of
the Holder(s) of the Underlying Common Shares covered by such
registration incurred in connection with such registration or other
action, other than underwriting discounts, commissions and
non-accountable expense allowance and applicable transfer taxes
relating to the Underlying Common Shares.
7. Indemnification.
(a) To the extent permitted by applicable law, the Company
agrees to indemnify and hold harmless each selling holder of Underlying
Common Shares and each person who controls any such selling holder
within the meaning of Section 15 of the Securities Act, and each and
all of them, from and against any and all losses, claims, damages,
liabilities or actions, joint or several, to which any selling holder
of Underlying Common Shares or they or any of them may become subject
under the Securities Act or otherwise and to reimburse the persons
indemnified as above for any legal or other expenses (including the
cost of any investigation and preparation) incurred by them in
connection with any litigation or threatened litigation, whether or not
resulting in any liability, but only insofar as such losses, claims,
damages, liabilities or actions arise out of, or are based upon, (i)
any untrue statement or alleged untrue statement of a material fact
contained in any registration statement pursuant to which Underlying
Common Shares were registered under the Act (a "registration
statement"), any preliminary prospectus, the final prospectus or any
amendment or supplement thereto (or in any application or document
filed in connection therewith) or document executed by the Company
based upon written information furnished by or on behalf of the Company
filed in any jurisdiction in order to register or qualify the
Underlying Common Shares under the securities laws thereof or the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or (ii) the employment by the Company of any device, scheme
or artifice to defraud, or the engaging by the Company in any act,
practice or course of business which operates or would operate as a
fraud or deceit, or any conspiracy with respect thereto, in which the
Company shall participate, in connection Underlying Common Shares;
provided, however, that (i) the
-10-
indemnity agreement contained in this Section 7(a) shall not extend to
any selling holder of Underlying Common Shares in respect if any such
losses, claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or alleged untrue statement, or
any such omission or alleged omission, if (a) such statement or
omission was based upon and made in conformity with information
furnished in writing to the Company by a selling holder of Underlying
Common Shares specifically for use in connection with the preparation
of such registration statement, any final prospectus, any preliminary
prospectus or any such amendment or supplement thereto or (b) such
selling holder fails to deliver the final prospectus in connection with
the transaction in conformity with the prospectus delivery requirements
under the Securities Act. The Company agrees to pay any legal and other
expenses for which it is liable under this Section 7(a) from time to
time (but not more frequently than monthly) within 30 days after its
receipt of a bill therefor.
(b) To the extent permitted by applicable law, each selling
holder of Underlying Common Shares, severally and not jointly, will
indemnify and hold harmless the Company, its directors, its officers
who shall have signed the registration statement and each person, if
any, who controls the Company within the meaning of Section 15 of the
Act and each agent and underwriter of the Company to the same extent as
the foregoing indemnity from the Company, but in each case to the
extent, and only to the extent, that any statement in or omission from
or alleged omission from such registration statement, any final
prospectus, any preliminary prospectus or any amendment or supplement
thereto was made in reliance upon information furnished in writing to
the Company by such selling holder specifically for use in connection
with the preparation of the registration statement, any final
prospectus or the preliminary prospectus or any such amendment or
supplement thereto; provided, however, that the obligation of any
holder of Underlying Common Shares to indemnify the Company under the
provisions of this Section 7(b) shall be limited to the product of the
number of Underlying Common Shares being sold by the selling holder and
the market price of the Common Stock on the date of the sale to the
public of these Underlying Common Shares. Each selling holder of
Underlying Common Shares agrees to pay any legal and other expenses for
which it is liable under this Section 7(b) from time to time (but not
more frequently than monthly) within 30 days after receipt of a bill
therefor.
(c) If any action is brought against a person entitled to
indemnification pursuant to the foregoing Sections 7(a) or (b) (an
"indemnified party") in respect of which indemnity may be sought
against a person granting indemnification (an "indemnifying party")
pursuant to such Sections, such indemnified party shall promptly notify
such indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party of any such action shall
not release the indemnifying party from any liability it may have to
such indemnified party otherwise than on account of the indemnity
agreement contained in Sections 6(a) or (b). In case any such action is
brought against an indemnified party and it notifies an indemnifying
party of the commencement thereof, the indemnifying party against which
a claim is to be made will be entitled to participate therein at its
own expense and, to the extent that it may wish, to assume at its
-11-
own expense the defense thereof, with counsel reasonably satisfactory
to such indemnified party; provided, however, that (i) if the
defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded based upon advice of counsel that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party shall have the right to select separate counsel to
assume such legal defenses and otherwise to participate in the defense
of such action on behalf of such indemnified party or parties and (ii)
in any event, the indemnified party shall be entitled to have counsel
chosen by such indemnified party participate in, but not conduct, the
defense at the expense of the indemnifying party. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by they
will not be liable to such indemnified party under this Section 7 for
any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the indemnified
party shall have employed such counsel in connection with the
assumption of legal defenses in accordance with proviso (i) to the next
preceding sentence (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one separate
counsel), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement
of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. An indemnifying party shall not be liable for any
settlement of any action or proceeding effected without its written
consent.
(d) In order to provide for just an equitable contribution in
circumstances in which the indemnity agreement provided for in Section
7(a) is unavailable to a selling holder of Underlying Common Shares in
accordance with its terms, the Company and the selling holder of
Underlying Common Shares shall contribute to the aggregate losses,
claims, damages and liabilities, of the nature contemplated by said
indemnity agreement, incurred by the Company and the selling holder of
Underlying Common Shares, in such proportions as is appropriate to
reflect the relative benefits received by the Company and the selling
holder of Underlying Common Shares from any offering of the Underlying
Common Shares; provided, however, that if such allocation is not
permitted by applicable law or if the indemnified party failed to give
the notice required under Section 7(c), then the relative fault of the
Company and the selling holder of Underlying Common Shares in
connection with the statements or omissions which resulted in such
losses, claims, damages and liabilities and other relevant equitable
considerations will be considered together with such relative benefits.
(e) The respective indemnity and contribution agreements by
the Company and the selling holder of Underlying Common Shares in
Sections 7(a), (b), (c) and (d) shall remain operative and in full
force and effect regardless of (i) any investigation made by any
selling holder of Underlying Common Shares or by or on behalf of any
person who controls such selling holder or by the Company or any
controlling person of the Company
-12-
or any director or any officer of the Company, (ii) payment for any of
the Underlying Common Shares or (iii) any termination of this
Agreement, and shall survive the delivery of the Underlying Common
Shares, and any successor of the Company, or of any selling holder of
Underlying Common Shares, or of any person who controls the Company or
of any selling holder of Underlying Common Shares, as the case may be,
shall be entitled to the benefit of such respective indemnity and
contribution agreements. The respective indemnity and contribution
agreements by the Company and the selling holder of Underlying Common
Shares contained in Sections 7(a), (b), (c) and (d) shall be in
addition to any liability which the Company and the selling holder of
Underlying Common Shares may otherwise have.
8. Limited Transferability.
(a) The Holder agrees that prior to making any transfer or
disposition of the Warrant or the Underlying Common Shares or any
interest therein, the Holder shall give written notice to the Company
describing briefly the manner in which any such proposed transfer or
disposition is to be made; and no such transfer or disposition shall be
made if the Company has notified the Holder that in the opinion of
counsel to the Company (i) a registration statement (or other
notification or post-effective amendment thereto) under the Securities
Act is required with respect to such transfer or disposition and no
such registration statement has been filed by the Company with, and
declared effective, if necessary, by, the Commission, or (ii)
unfulfilled requirements under any federal, state or foreign securities
laws prohibit or restrict the proposed transfer or disposition. The
Company shall not be required to cause the Warrant or the Underlying
Common Shares to be registered under any securities laws, except as
provided in Section 5 above.
The Company may treat the registered holder of this Warrant as
he or it appears on the Company's books at any time as the Holder for
all purposes. The Company shall permit any holder of a Warrant or his
duly authorized attorney, upon written request during ordinary business
hours, to inspect and copy or make extracts from its books showing the
registered holders of Warrants. All Warrants will be dated the same
date as this Warrant.
(b) By acceptance hereof, the Holder represents and warrants
that this Warrant is being acquired, and all Underlying Common Shares
to be purchased upon the exercise of this Warrant will be acquired, by
the Holder solely for the account of such Holder and not with a view to
the distribution thereof and will not be sold or transferred except in
accordance with the applicable provisions of the Securities Act and the
rules and regulations of the SEC promulgated thereunder, and the Holder
agrees that neither this Warrant nor any of the Underlying Common
Shares may be sold or transferred except under cover of a registration
statement under the Act which is effective and current with respect to
such Underlying Common Shares or pursuant to an opinion, in form and
substance reasonably acceptable to the Company's counsel, that
registration under the Act is not required in connection with such sale
or transfer. Any Underlying Common Shares issued upon exercise of this
Warrant shall bear the following legend:
-13-
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT
BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH ACT AND
ALL SUCH APPLICABLE LAWS OR, IN THE OPINION OF COUNSEL IN FORM
AND SUBSTANCE SATISFACTORY TO THE ISSUER OF THE SHARES
REPRESENTED BY THIS CERTIFICATE, SUCH OFFER, SALE OR TRANSFER,
PLEDGE OR HYPOTHECATION IS IN COMPLIANCE THEREWITH."
9. Intentionally Left Blank
10. Loss, etc., of Warrant.
Upon receipt of evidence satisfactory to the Company of the loss,
theft, destruction or mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and upon surrender
and cancellation of this Warrant, if mutilated, and upon reimbursement of the
Company's reasonable incidental expenses, the Company shall execute and deliver
to the Holder a new Warrant of like date, tenor and denomination.
11. Warrant Holder Not Shareholders.
Except as otherwise provided herein, this Warrant does not confer upon
the Holder any right to vote or to consent to or receive notice as a shareholder
of the Company, as such, in respect of any matters whatsoever, or any other
rights or liabilities as a shareholder, prior to the exercise hereof.
-14-
12. Communication.
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall be
deemed to have been given if, the same is in writing and is mailed by
first-class mail, postage prepaid, addressed to:
a) the Company at: TAM Restaurant Holding Corp.
1163 Forest Avenue
Staten Island, New York 10310
Attn: Frank Cretella
with a copy to: Tenzer Greenblatt LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174-0208
Attention: Robert J. Mittman, Esq.
or such other address as the Company has designated in writing to the
Holder; or
the Holder at: c/o Kayne Anderson Investment
Management, Inc.
1800 Avenue of the Stars, Second Floor
Los Angeles, California 90067
Attention: David Shladovsky, General Counsel
or such other address as the Holder has designated in writing to the
Company.
13. Headings.
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
14. Applicable Law.
This Warrant shall be governed by and construed in accordance with the
laws of New York.
-15-
IN WITNESS WHEREOF TAM Restaurant Holding Corp. has caused this Warrant
to be signed by its Chairman of the Board and its corporate seal to be hereunto
affixed and attested by its Secretary this 31st day of October, 1997.
ATTEST: _________________________ TAM RESTAURANT HOLDING CORP.
By:
-------------------------
Chairman of the Board
[Corporate Seal]
-16-
SUBSCRIPTION FORM
TAM RESTAURANT HOLDING CORP.
The undersigned hereby irrevocably elects to exercise the right of
purchase represented by the within Warrant for, and to purchase thereunder,
_______________ Shares of Common Stock provided for therein, and makes payment
therefor in full at the price per share provided by said Warrant.
Unless the Shares have been registered under the Securities Act of
1933, as amended, the undersigned hereby represents and warrants to TAM
Restaurant Holding Corp. that it is acquiring the Shares for its own account for
investment and not with a view to or for sale in connection with a distribution
thereof.
Dated:_____________________________
Name of Holder or Assignee:
___________________________________
(Please Print)
Address:___________________________
___________________________________
Signature:_________________________
Note: The above signature must correspond
with the name as it appears upon the
face of the within Warrant
certificate in every particular,
without alteration or enlargement or
any change whatever, unless these
Warrants have been assigned.
Signature Guaranteed:
__________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
ASSIGNMENT
TAM RESTAURANT HOLDING CORP.
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
_______________________________________________________________________________
the within Warrant, hereby irrevocably constituting and appointing
____________________ Attorney to transfer said Warrants on the books of TAM
Restaurant Holding Corp., with full power of substitution in the premises.
Dated:______________________________
____________________________________
Signature of Registered Holder
Note: The above signature must correspond
with the name as it appears upon the
face of the within Warrant
certificate in every particular,
without alteration or enlargement or
any change whatever.
Signature Guaranteed:
__________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)
PARTIAL ASSIGNMENT
TAM RESTAURANT HOLDING CORP.
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
_______________________________________________________________________________
(Name and Address of Assignee Must Be Printed or Typewritten)
_______________________________________________________________________________
the right to purchase __________________ shares of the Common Stock of TAM
Restaurant Holding Corp. (the "Company") by the foregoing Warrant, and a
proportionate part of said Warrant and the rights evidenced thereby, and hereby
irrevocably constitutes and appoints ________________________ Attorney to
transfer said Warrants on the books of the Company with full power of
substitution in the premises.
Dated:________________________________
______________________________________
Signature of Registered Holder
Note: The above signature must correspond
with the name as it appears upon the
face of the within Warrant
certificate in every particular,
without alteration or enlargement or
any change whatever.
Signature Guaranteed:
_____________________________________
(Signature must be guaranteed by a bank or trust company having an office or
correspondent in the United States or by a member firm of a registered
securities exchange or the National Association of Securities Dealers, Inc.)