EXHIBIT 10.8.3
FIRST RESTATED LOAN AGREEMENT
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THIS FIRST RESTATED LOAN AGREEMENT made and entered into this 1st day
of October 2003 by and among INTRUST Bank, N.A. (herein referred to as "Bank"),
TENT Finance, Inc., a Delaware corporation, and Total Entertainment Restaurant
Corp., a Delaware corporation (herein collectively referred to as "Borrower")
and the Subsidiaries, as defined below (herein collectively referred to as
"Guarantor").
WITNESSETH:
WHEREAS, the parties have previously executed a Loan Agreement dated
September 1, 1998 (the "Loan Agreement"); and
WHEREAS, Borrower has that Bank extend the maturity date of the
Facility and Bank has agreed to this on certain terms and conditions; and
WHEREAS, Guarantor has agreed to continue to guarantee the
Indebtedness.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties agree as follows:
ARTICLE I -- DEFINITIONS
1.1. DEFINITIONS. When used in this Agreement, the following terms
shall have the following meanings:
(a) "Accounts" shall mean the accounts of the Borrower and
Guarantor, as that term is defined in the UCC. "Accounts" include all
receivables, third-party claims, instruments, documents, chattel paper and
executory contract rights.
(b) "Agreement" shall mean this First Restated Loan Agreement together
with all amendments and supplements hereto.
(c) "Capital Lease Excess" shall mean the amount by which the
total outstanding under all Capital Leases of Borrower or Guarantor on a
consolidated basis exceeds the sum of one million dollars ($1,000,000.00).
(d) "Capital Leases" shall mean leases of personal property that are
eligible for capital treatment under generally accepted accounting principles
consistently applied.
(e) "Collateral" shall mean all of Borrower's and Guarantor's right,
title and interest in its Accounts, Equipment, Inventory, Fixtures, Chattel
Paper, Instruments, Documents, Deposit Accounts, Contracts, General Intangibles
(as each of those terms are defined in the UCC), executory contract rights and
third-party claims, along with all Borrower's and Guarantor's right, title and
interest in its Restaurants, including but not limited to, the Real Estate,
Leaseholds, FF&E, Accounts, Contracts, General Intangibles, Inventory, Licenses
and Permits and Trademark Licenses relating to the Restaurants, whether now
owned or hereafter acquired, including all proceeds from the disposition or
collection thereof.
(f) "Contracts" shall mean all contracts, agreements and warranties
governing the use, occupancy, operation, management, name, or chain affiliation
and/or repair and service of a Restaurant, and all leases and occupancy
agreements, and all amendments, modifications, and supplements to any of the
foregoing, of Borrower and Guarantor.
(g) "EBITDA" shall mean the aggregate of Borrower's and
Guarantor's consolidated net income before interest expense, tax expense,
depreciation expense and amortization expense cumulated for the fifty two (52)
weeks immediately preceding the date of determination, excluding EBITDA
generated by any New Restaurant.
(h) "EBITDA Multiple" shall mean the factor 2.25.
(i) "Equipment" shall mean Borrower's and each of Guarantor's equipment
as that term is defined in the UCC.
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(j) "Event of Default" shall mean an event described in Article VII.
(k) "Facility" shall mean the revolving credit facility extended to
Borrower by Bank evidenced by the Facility Note, as further described in Section
2.1 hereof.
(l) "FF&E" shall mean Borrower's and each of Guarantor's
fixtures, furnishings, Equipment, furniture and other items of tangible personal
property now or hereafter located in the Restaurant or used in connection with
the operation, and the maintenance of all or any part of the Restaurant,
including, without limitation, appliances, machinery, equipment, signs, artwork,
furnishings, and specialized equipment for kitchens, laundries, bars,
restaurants, public rooms, linens, dishware, awnings, shades, blinds, floor
coverings, hall and lobby equipment, heating, lighting, plumbing, ventilating,
refrigerating, incinerating, elevators, escalators, air conditioning and
communication systems, security systems, sprinkler systems, fire prevention and
extinguishing apparatus, cash registers, computers and related equipment,
equipment for the maintenance, repair and cleaning of parking areas, walks,
driveways and common areas.
(m) "General Intangibles" shall mean Borrower's and each of Guarantor's
general intangibles as that term is defined in the UCC.
(n) "Indebtedness" shall refer to all debt, including all contract,
tort and statutory obligations of any nature of Borrower or Guarantor to Bank of
every kind and description, direct or indirect, primary or secondary, secured or
unsecured (including overdrafts), joint and several, absolute or contingent, due
or to become due, now existing or hereafter arising, regardless of how it may be
evidenced.
(o) "Inventory" shall mean Borrower's and each of Guarantor's inventory
as that term is defined in the UCC.
(p) "Leasehold" shall mean the interest of Borrower or Guarantor under
any ground lease or lease of improvements, including the leasehold estate
created thereby, and the buildings, structures, fixtures, additions,
enlargements, extensions, modifications, repairs, replacements and improvements
now or hereafter located thereon, plus all modifications, extensions and
renewals of any lease and all credits, deposits, options, privileges and rights
of Borrower or Guarantor as lessee under a lease, including, but not limited to,
the right, if any, to renew or extend the lease for a succeeding term or terms;
all the estates, rights, title, claims or demands whatsoever of Borrower or
Guarantor either in law or in equity, in possession or expectancy, of, in and to
the real estate covered by any lease or improvements located thereon; and all
easements, rights-of-way, strips of land, streets, ways, alleys, passages, sewer
rights, water, water courses, water rights and powers, air rights and
development rights.
(q) "Licenses & Permits" shall mean all building permits,
certificates of occupancy and other permits, licenses, memberships, franchises,
contracts, approvals and authorizations necessary for Borrower or Guarantor to
own, use, occupy, operate or maintain a Restaurant or any part thereof as
operated now or in the future, including any license required for the service of
alcoholic beverages.
(r) "Loan Documents" shall mean and refer to this Agreement, the
Note, all mortgages or deeds of trust, all security agreements and assignments,
all guaranty agreements, and all other documents and agreements required to be
executed herein or executed pursuant hereto, and as any of them may be extended,
renewed, amended or supplemented from time to time.
(s) "National Prime Rate" shall mean the Prime Rate as published in the
Wall Street Journal, Money Rates Table, as of the date of any interest rate
adjustment.
(t) "Net Worth" shall mean at any date the net worth of Borrower,
consolidated with Guarantor, including intangible assets not to exceed
$6,000,000, as determined under GAAP.
(u) "New Restaurant' shall mean a Restaurant under construction or in
its first fiscal quarter of operation, if the results of its operation are not,
and have not previously been, included in Borrower's EBITDA calculation.
(v) "Note" shall mean the Facility Note, and all extensions, renewals,
modifications or replacements thereof.
(w) "Operating Leases" shall mean leases of personal or real property
by Borrower or Guarantor, the payment of which is deducted from the results of
operations of Borrower or Guarantor prior to calculation of EBITDA.
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(x) "Real Estate" shall mean the real estate, all buildings or
improvements situated thereof, together with all easements, servitudes, rights
of way, sewer rights and all appurtenances whatsoever, in any way now or
hereafter belonging to the real estate and the rents, issues and profits
thereof.
(y) "Restaurant" shall mean the Real Estate, if owned by Borrower or
Guarantor; any Leasehold interest of Borrower or Guarantor; all improvements,
buildings, structures and appurtenances located on the Real Estate or any
leasehold, including bars, banquet, meeting and other public rooms, garage and
parking spaces, kitchens, storerooms and maintenance workshops and all public
grounds; and all Accounts, Contracts, General Intangibles, Inventory, Licenses
and Permits, FF&E, plans and specifications, Trademark Licenses and all other
property of every kind and description used or useful in the ownership,
occupancy, operation, and maintenance of the restaurant as currently operated or
proposed to be operated in the future, together with any and all proceeds of the
foregoing, including, without limitation, any and all cash and noncash
consideration received from the sale, exchange, lease, collection or other
disposition of any of the foregoing, any payment received from any insurer or
other person or entity as a result of the destruction, loss, theft, damage or
other involuntary conversion of whatever nature of any of the foregoing, and all
replacements, substitutions for the foregoing or accessions thereto.
(z) "Subsidiaries" shall mean on the date of this Agreement, the
entities identified on Attachment "A" hereto. "Subsidiaries" shall further
include all future entities owned in whole or in part by TENT Finance, Inc. to
the extent such entities own and operate Fox & Hound Restaurants, Bailey's
Sports Grilles, or other ventures financed in whole or in part by proceeds of
the Facility.
(aa) "Trademark Licenses" shall mean all trademark rights, trade
names, trade name rights, patents, patent rights, and fictitious name rights
necessary to enable Borrower or Guarantor to conduct its business without
conflict with the rights of others, including contracts granting to Borrower or
Guarantor any right to use any Trademark or name with regard to a Restaurant or
part thereof.
(bb) "UCC" shall mean the Uniform Commercial Code as from time
to time in effect in the State of Kansas.
ARTICLE II -- NOTE AND SECURITY
Section 2.1. FACILITY. Pursuant to the terms and conditions of this
Agreement, Bank agrees to establish a Facility of $20,000,000 in favor of
Borrower, to be evidenced by a Facility Note, which shall mature on October 1,
2006. A copy of the Facility Note is attached hereto as Attachment "B". Advances
under the Facility will be made by Bank to Borrower from time to time in
accordance with the terms and conditions of this Agreement. Borrower shall use
all advances solely for the purposes set forth in Section 2.4 hereof.
Section 2.2. TERMS OF PAYMENT ON FACILITY. Interest on the Note, or any
advance thereunder, shall be adjusted on the first day of each month to National
Prime Rate as of such date less 1/2%. Accrued interest shall be due on the first
day of each month beginning October 1, 2003. Principal shall be due and payable
at maturity.
Section 2.3. LIMITATIONS ON THE FACILITY. Borrower may borrow,
partially or wholly repay its borrowings, and reborrow, by requesting advances
from the Facility, so long as:
(a) The total Indebtedness owed Bank, including all principal and
accrued interest does not exceed the Facility at any one time;
(b) None of the terms and conditions of this Agreement are in default
(c) Bank has not determined that there has been a material adverse
change in the financial condition of Borrower on a consolidated basis;
(d) Neither Borrower nor Guarantor is in default under any loan, any
other financial obligation, or any other material agreement;
(e) The advance, when aggregated with all outstanding Indebtedness of
Borrower, will not result in a breach of the financial covenants set forth in
Section 5.12 hereof, as of the date of such loan or advance hereunder; and
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(f) The advance, when aggregated with all outstanding loans, advances
or loan commitments by Bank, to Borrower (or to other persons or entities
required by law to be aggregated with the outstanding loans of Borrower), would
not exceed Bank's legal lending limit determined pursuant to federal regulations
and issuances of the Office of the Comptroller of the Currency, as of the date
of such loan or advance hereunder.
Section 2.4. USE OF PROCEEDS. The proceeds from the Facility shall be
used for working capital and restaurant development, including acquisition of
furnishings, fixtures, equipment and leaseholds for Fox & Hound restaurants,
English Pub & Grille restaurants, Bailey's Sports Grille, Baileys Pub & Grille
restaurants, or other ventures approved by Bank. Additionally, in strict
accordance with the prior written consent of Bank, which may be withheld in
Bank's sole discretion, Borrower may use proceeds from this Facility to purchase
treasury stock.
Section 2.5. SECURITY. As security for the entire Indebtedness to Bank,
Borrower and Guarantor hereby pledge, assign and grant a first security interest
in favor of Bank in the Collateral of Borrower and Guarantor. It is acknowledged
that Borrower may from time to time form additional Subsidiaries for the purpose
of operating additional locations. From the date of formation of such new
Subsidiary, it shall be deemed a Guarantor hereunder, subject to the terms and
condition of this Agreement. Borrower agrees to promptly notify Bank of the
formation of any new Subsidiary and to cause such Subsidiary to deliver to Bank
an unlimited guaranty of the Indebtedness and other Loan Documents reasonably
requested by Bank to grant and perfect in Bank a first and prior security
interest in the Collateral held by such new Subsidiary.
Section 2.6. RENEWALS AND EXTENSIONS. If no Event of Default has
occurred or is continuing, Borrower shall have the option to renew the
Indebtedness outstanding under the Facility Note on its maturity date. Such
renewal shall be evidenced by a term note having a maturity date of October 1,
2010 (the "Renewal Note"). Interest on the Renewal Note shall be adjusted on the
first day of each month to National Prime Rate as of such date less 1/2%. The
Renewal Note shall provide for equal installments of principal and interest
commencing on November 1, 2006 and continuing each month thereafter as necessary
to fully amortize the Indebtedness plus future interest over the term. As a
precondition of such renewal, Borrower and Guarantor agree to execute and
deliver to Bank such additional documents as may be required by Bank to grant,
continue or perfect Bank's interest in the Collateral, as it may exist at the
time of such renewal.
Any renewal, extension or modification of the Facility Note, or any advance made
pursuant to the terms of such note, or any other indebtedness which Borrower may
have with Bank in the future, shall be subject to the terms of this Agreement.
Except as expressly set forth herein, Bank is under no obligation to renew any
obligation when it matures.
ARTICLE III -- REPRESENTATIONS AND WARRANTIES
Borrower and Guarantor hereby represent and warrant, and so long as any
indebtedness from Borrower to the Bank remains outstanding, continuously
represents and warrants as follows:
Section 3.1. LEGAL STATUS. Borrower is a corporation duly organized and
existing under the laws of the State of Delaware, and is qualified to do
business, and is in good standing, in all jurisdictions in which it conducts its
business. Guarantor is an entity as described on Attachment "A", organized and
existing under the laws set forth on Attachment "A", and is qualified to do
business, and is in good standing, in all jurisdictions in which it conducts its
business.
Section 3.2. NO VIOLATION. The making and performance by Borrower and
Guarantor of this Agreement does not violate any provision of law, or result in
a breach of, or constitute a default under, Borrower's or Guarantor's articles
of incorporation and bylaws, or any Loan Documents, agreement, indenture or
other instrument to which Borrower or Guarantor may be a party or by which it
may be bound.
Section 3.3. LITIGATION. There are no pending or threatened actions or
proceedings before any court or administrative agency against Borrower or any
Guarantor which would have a material adverse effect upon the financial
condition or results of operations of Borrower or any Guarantor other than those
heretofore disclosed to Bank in writing.
Section 3.4. CORRECTNESS OF FINANCIAL STATEMENTS. The financial
statements heretofore and hereafter delivered by Borrower to Bank present fairly
the financial condition of Borrower, consolidated with Guarantor, and have been
prepared in accordance with generally accepted accounting principles
consistently applied. As of the date of each such financial statement, and since
such date, there has been no material adverse change in the financial condition
or results of operations of Borrower or Guarantor, nor has Borrower or Guarantor
mortgaged, pledged or granted a security interest in, or encumbered, any assets
or properties since such date.
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Section 3.5. AUTHORIZATION. The Loan Documents have been duly
authorized, executed and delivered by Borrower and Guarantor and are the legal,
valid and binding obligations of Borrower and Guarantor enforceable in
accordance with their respective terms except as rights to indemnity and
contribution contained in the Loan Documents may be limited by applicable law
and except as enforceability may be limited by bankruptcy, insolvency,
moratorium and similar laws affecting creditors' rights.
Section 3.6. NO SUBORDINATION. The obligations of Borrower and
Guarantor under this Agreement and the Loan Documents are not subordinated in
right of payment or in lien priority to any obligation of Borrower or Guarantor.
Section 3.7. PERMITS AND FRANCHISES. The Borrower or Guarantor, as
applicable, now possesses, and will hereafter possess, all Licenses and Permits
and Trademark Licenses, except where the failure to possess such Licenses and
Permits and Trademark Licenses would not have a material adverse effect upon the
financial condition or results of operations of the Borrower or any Guarantor.
ARTICLE IV -- CONDITIONS PRECEDENT
The obligation of Bank to make any advance under the Loan Agreement, is
subject to the fulfillment of the following conditions:
Section 4.1. APPROVAL OF BANK COUNSEL. All legal matters incidental to
all such advances hereunder shall be satisfactory to legal counsel of Bank.
Section 4.2. COMPLIANCE. The representations and warranties contained
herein shall be true as of the date of the signing of this Agreement and on the
date of any advance, no Event of Default, as defined in Article VII herein, and
no condition, event or act which, with the giving of notice or the lapse of time
or both, would constitute an Event of Default, shall have occurred.
Section 4.3. DOCUMENTATION. Borrower shall have delivered to Bank in
form and substance satisfactory to Bank the following described documents:
(a) This Agreement and other Loan Documents duly executed by Borrower
and Guarantor granting to Bank a first and prior perfected security interest in
the Collateral;
(b) Certified copy of Corporate Resolution of Borrower ratifying this
Agreement and authorizing the execution of the Loan Documents;
(c) Certified copy of Resolution of Guarantor ratifying this Agreement
and authorizing the Guaranty Agreement and other Loan Documents;
(d) Unlimited unconditional Guaranty Agreement from the Guarantors; and
(e) Such other documentation as the Bank may reasonably require.
ARTICLE V -- AFFIRMATIVE COVENANTS
Borrower and Guarantor covenant that so long as Borrower is indebted to
Bank under this Agreement, Borrower and Guarantor will:
Section 5.1. PUNCTUAL PAYMENT. Punctually pay to Bank all payments
required to be made under this Loan Agreement and any Note.
Section 5.2. ACCOUNTING RECORDS. Maintain adequate books and accounts
in accordance with generally accepted accounting principles consistently
applied, so that any time, and from time to time, the true and complete
financial condition of Borrower consolidated with Guarantor is fairly presented
and can be readily determined, and permit any representative of Bank at any
reasonable time, to inspect, audit and examine such books and accounts of
Borrower or any Guarantor and permit Bank to make and obtain copies of any such
books and accounts, and to permit any representative of Bank to inspect the
properties of Borrower and any Guarantor.
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Section 5.3. FINANCIAL STATEMENTS: Furnish Bank:
(a) Not later than 105 days after, and as of the end of each fiscal
year, a financial statement of Borrower prepared by a certified public
accountant to include balance sheet and income statement;
(b) Not later than 50 days after the end of each calendar quarter, a
balance sheet and statement of income of Borrower, consolidated with Guarantor,
in a form satisfactory to Bank, certified correct by an officer of Borrower;
(c) From time to time such other information as Bank may reasonably
request.
Section 5.4. NOTICE TO ACCOUNTANTS. Notify Borrower's and Guarantor's
accountants in writing that Bank intends to rely upon financial information
prepared by such accountants on behalf of Borrower and each Guarantor in
determining whether to make any extension of credit covered by this Loan
Agreement, including any advance, renewal or extension thereto.
Section 5.5. EXISTENCE. Preserve and maintain the existence and all of
the rights, privileges and franchises of Borrower and Guarantor; conduct all
business in an orderly, efficient, and regular manner; and comply in all
material respects with the requirements of all applicable laws, rules,
regulations and orders of a governmental authority except where the failure to
preserve and maintain such rights, privileges and franchises or where the
failure to comply with such laws, rules, regulations and orders would not have a
material adverse effect upon the financial condition or results of operations of
Borrower or any Guarantor. Provided, further, that upon the prior written
consent of Bank which shall not be unreasonably withheld or delayed, Borrower or
Guarantor may relocate, consolidate or close any Restaurant if such relocation,
consolidation or discontinuance would not have a material adverse effect upon
the financial condition or results of operations of Borrower or any Guarantor.
Section 5.6. INSURANCE. Maintain and keep in force insurance of the
types and in amounts customarily carried in the line of business similar to that
of Borrower and Guarantor, including, but not limited to, fire, public
liability, property damage, workers' compensation, and carried with companies
and in amounts reasonably satisfactory to Bank; and Borrower and Guarantor shall
deliver to Bank from time to time, at Bank's request, schedules setting forth
all insurance then in effect. Borrower and Guarantor shall maintain and keep in
force product liability insurance in such amounts deemed adequate and
economically feasible by the parties.
Section 5.7. FACILITIES. Keep all Borrower's and Guarantor's properties
in good repair and condition, and from time to time make necessary repairs,
renewals and replacements thereto as shall be reasonably necessary for the
proper conduct of its business. . Provided, further, that upon the prior written
consent of Bank which shall not be unreasonably withheld or delayed, Borrower or
Guarantor may relocate, consolidate or close any of its facilities if such
relocation, consolidation or discontinuance would not have a material adverse
effect upon the financial condition or results of operations of Borrower or any
Guarantor. Borrower and Guarantor shall promptly satisfy any and all mechanic's
or materialmen's liens filed on any of its facilities.
Section 5.8. TAXES AND OTHER LIABILITIES. Pay and discharge when due
any and all indebtedness, obligations, assessments, and taxes of Borrower or
Guarantor, except such as it may in good faith contest or as to which a bona
fide dispute may arise.
Section 5.9. LITIGATION. Promptly give notice in writing to Bank of any
litigation pending or threatened against Borrower or Guarantor where the amount
sought exceeds $50,000.
Section 5.10. NOTICE TO BANK. Promptly give notice in writing to Bank
of (a) the occurrence of any Event of Default, as defined in Article VII; (b)
any change in the name, identity or corporate structure of Borrower or
Guarantor; or (c) any uninsured or partially uninsured loss through fire, theft,
liability or property damage in excess of an aggregate of $100,000 to Borrower
or to Guarantor.
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Section 5.11. SECURITY DOCUMENTATION. Debtor hereby irrevocably
authorizes Secured Party at any time and from time to time to file in any
Uniform Commercial Code jurisdiction initial financing statements and/or any
amendments thereto which (i) indicate the Collateral (A) as "all assets" or "all
personal property" of Borrower and/or Guarantor or words of similar effect,
regardless of whether any particular asset comprised in the Collateral falls
within the scope of Article 9 of the Uniform Commercial Code of the State of
Kansas or such other jurisdiction or (B) as being of an equal or lesser scope or
with greater detail and (ii) contain any other information required by part 5 of
Article 9 of the Uniform Commercial Code of the applicable jurisdiction for the
sufficiency or filing office acceptance of any financing statement or amendment,
including (A) whether Debtor is an organization, the type of organization and
any organization identification number issued to Debtor and (B) in the case of a
financing statement filed as a fixture filing, a sufficient description of real
property to which the Collateral relates. Debtor agrees to furnish any such
information to Secured Party promptly upon request. Debtor also ratifies its
authorization for Secured Party to have filed in any Uniform Commercial Code
jurisdiction any like initial financing statements or amendments thereto if
filed prior to the date of this Agreement.
Section 5.12. FINANCIAL CONDITIONS. Maintain Borrower's financial
condition, when consolidated with Guarantor, as follows:
(a) Borrower shall maintain Net Worth of not less than $20,000,000.
(b) Borrower's Indebtedness to Bank plus any Capital Lease Excess,
shall not exceed the lesser of (i) $20,000,000, or (ii) (EBITDA x EBITDA
Multiple) + (New Restaurants x $250,000). If such limit is exceeded, Borrower
shall immediately reduce its outstanding Indebtedness to Bank as required to
bring itself into compliance with the foregoing financial condition.
Section 5.13. PAYMENT OF COSTS AND EXPENSES. Borrower and Guarantor
agree to pay to Bank, on demand, all reasonable and necessary costs and expenses
as provided in this Agreement and the other Loan Documents, and all costs and
expenses reasonably and necessarily incurred by Bank from time to time in
connection with this Agreement and the other Loan Documents, including, without
limitation, those reasonably and necessarily incurred in: (i) preparing,
negotiating, amending, waiving or granting consent with respect to the terms of
any or all of the Loan Documents; (ii) enforcing the Loan Documents; (iii)
performing any of Borrower's or Guarantor's duties under the Loan Documents upon
Borrower's or Guarantor's failure to perform them; (iv) filing financing
statements, assignments or other documents relating to the Collateral (e.g.,
filing fees, registration taxes); (v) compromising, pursuing, or defending any
controversy, action or proceeding resulting, directly or indirectly, from Bank's
relationship with Borrower or Guarantor, regardless of whether Borrower or
Guarantor is a party to such controversy, action or proceeding and whether the
controversy, action or proceeding occurs before or after all indebtedness owing
to Bank by Borrower and Guarantor has been paid in full; provided, however, that
Borrower and Guarantor shall not be liable to Bank for costs and expenses
resulting from the gross negligence or the willful misconduct of Bank in
connection therewith; (vi) enforcing or collecting any part of the indebtedness
owing to Bank by Borrower or any guaranty contemplated under the Loan Documents;
(vii) actual out of pocket expenses of Bank incurred to employ collection
agencies or other agents to collect any or all of the accounts and accounts
receivables; and (viii) obtaining independent appraisals of the Collateral from
time to time as deemed reasonably necessary by Bank. Any amount due to Bank
pursuant to this Section shall, if not paid upon demand, accrue interest at the
per annum rate of 5 percentage points over Bank's base rate as adjusted from
time to time.
ARTICLE VI -- NEGATIVE COVENANTS
Borrower and Guarantor covenants that so long as Borrower is indebted
to Bank, Borrower and Guarantor will not, without prior written consent of Bank
which shall not be unreasonably withheld or delayed:
Section 6.1. OTHER INDEBTEDNESS. Create, incur, or permit to exist any
liabilities resulting from borrowings, leases, loans or advances, whether
secured or unsecured, or any liens, mortgages or other encumbrances, except:
(a) Indebtedness to Bank,
(b) Obligations of Borrower or Guarantor under Operating Leases,
(c) Obligations of Borrower or Guarantor under Capital Leases
aggregating less than one million dollars ($1,000,000), computed on a
consolidated basis;
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(d) Other indebtedness of Borrower or Guarantor outstanding on the date
of this Agreement and reflected in its financial statements or otherwise
disclosed in writing to Bank; and
(e) Obligations in the ordinary course of business.
Section 6.2. MERGER, CONSOLIDATION, SALE OF ASSETS. Merge into or
consolidate with any corporation or other entity or acquire all or substantially
all of the assets of any other corporation or entity; or sell, lease, assign,
transfer or otherwise dispose of all or substantially all of its assets.
Section 6.3. GUARANTIES, ADVANCES AND DIVIDENDS. Guarantee or become
liable in any way as surety, endorser (other than as endorser of negotiable
instruments in the ordinary course of business) or accommodation for the debt or
obligations of any person or entity, or make advances to officers or employees
in excess of $50,000 in the aggregate, other than regularly scheduled salary
payments and regular payments to an existing qualified profit or pension plan.
ARTICLE VII -- EVENTS OF DEFAULT
Section 7.1. EVENTS OF DEFAULT. Any of the following shall constitute
an Event of Default.
(a) Default by Borrower in any payment of principal or interest under
any indebtedness to Bank or any sum due in this Agreement; or
(b) Any representation or warranty made by Borrower or Guarantor
hereunder which shall be incorrect in any material respect; or
(c) Default by Borrower or Guarantor in the performance of any other
term, covenant or agreement contained herein, which default is not cured within
20 days from its occurrence; or
(d) Default by Borrower or Guarantor under the terms of any agreement,
note or other instrument except to the extent that such default could not
reasonably be expected to have a material adverse effect on the financial
condition of Borrower or any Guarantor or where such default has been cured
within 30 days; provided, however, that if Borrower or Guarantor defaults in its
performance under any other agreement, note, or instrument and such default
causes Borrower's or Guarantor's obligations to be immediately due and payable,
then Bank, in its sole discretion, may immediately exercise its rights under
Section 7.3 herein; or
(e) The failure of Borrower or Guarantor to promptly pay and discharge
any final judgment, levy of attachment, execution or other process against the
assets of Borrower and such judgment be not satisfied, or such levy or other
process be not removed, within 30 days after the date on which any period for
appeal has expired; or
(f) Borrower or Guarantor shall be adjudicated a bankrupt or insolvent,
or shall consent to or apply for the appointment of a receiver, trustee or
liquidator of itself or any of its property, or shall admit in writing its
inability to pay its debts generally as they become due, or shall make a general
assignment for the benefit of creditors, or shall file a voluntary petition in
bankruptcy or voluntary petition or an answer seeking reorganization or
arrangement in a proceeding under any bankruptcy law; or
(g) There shall have occurred a material adverse change, as reasonably
determined by Bank, in the financial condition or results in operations of the
Borrower or Guarantor since the date of this Agreement including, but not
limited to, a change in ownership or management of Borrower or Guarantor; or
(h) An Event of Default (as defined in the other Loan Documents) occurs
in any of the other Loan Documents.
Section 7.2. ENVIRONMENTAL EVENTS OF DEFAULT. Any of the following
shall constitute an additional Event of Default:
-8-
(a) If Bank receives its first notice of a hazardous discharge or
environmental complaint from a source other than Borrower or Guarantor, and Bank
does not receive notice (which may be given in oral form, provided same is
followed with all due dispatch by written notice given by Certified Mail, Return
Receipt Requested) of such hazardous discharge or environmental complaint from
Borrower or Guarantor within seven (7) days of the time Bank first receives said
notice from a source other than Borrower or Guarantor; or
(b) If any federal, state or local agency asserts or creates a lien in
excess of $50,000 on any or all of the assets, equipment, property, leaseholds
or other facilities of the Borrower by reason of the occurrence of a hazardous
discharge or environmental complaint; or
(c) If any federal, state or local agency asserts a claim against
Borrower or Guarantor and/or its assets, equipment, property, leaseholds or
other facilities for damages or cleanup costs in excess of $50,000 relating to a
hazardous discharge or environmental complaint; provided, however, such claim
shall not constitute an Event of Default if, within ten (10) business days of
the occurrence giving rise to the claim;
(i) Borrower or Guarantor can demonstrate to Bank's
satisfaction that Borrower or Guarantor has commenced and is diligently pursuing
either: (1) a cure or correction of the event which constitutes the basis for
the claim, and continues diligently to pursue such cure or correction to
completion or (2) proceedings for an injunction, a restraining order or other
appropriate emergent relief preventing such agency or agencies from asserting
such claim, which relief is granted within ten (10) business days of the
occurrence giving rise to the claim and the injunction, order or emergency
relief is not thereafter resolved or reversed on appeal; and
(ii) In either of the foregoing events, Borrower or Guarantor
has posted a bond, letter of credit or other security satisfactory in form,
substance and amount to both Bank and the agency or entity asserting the claim
to secure the correction of the event that constitutes the basis for the claim.
Section 7.3. EFFECT OF EVENT OF DEFAULT. At the sole discretion of Bank
and without notice to Borrower or Guarantor and without affecting Bank's right
to accelerate any payment terms, if an Event of Default shall occur the interest
rate on each Note representing any indebtedness of Borrower to Bank shall be
increased two (2) percentage points for as long as such Event of Default
continues.
Section 7.4 ACCELERATION. If an Event of Default shall occur, any
indebtedness of Borrower under this Agreement or any Note, any term of such Note
to the contrary notwithstanding, shall, at Bank's option and without notice
become immediately due and payable without presentment, notice or demand, all of
which are hereby expressly waived by Borrower and Guarantor; and the obligation,
if any, of the Bank to permit further borrowings hereunder shall immediately
cease and terminate.
ARTICLE VIII -- ENVIRONMENTAL
Section 8.1. SURVIVAL. This Article shall survive the expiration or
termination of this Agreement.
Section 8.2. REPRESENTATIONS AND WARRANTIES.
(a) Borrower and Guarantor have duly complied in all material respects
with, and its business, operations, assets, equipment, property, leaseholds or
other facilities are in compliance in all material respects with, the provisions
of all federal, state and local environmental, health and safety laws, codes and
ordinances, and all rules and regulations promulgated thereunder.
(b) Borrower and Guarantor have been issued and will maintain all
required federal, state and local permits, licenses, certificates and approvals
relating to (i) air emissions, (ii) discharges to surface or groundwater, (iii)
noise emissions, (iv) solid or liquid waste disposal, (v) the use, generation,
storage, transportation or disposal of toxic or hazardous substances or wastes
(intended hereby and hereafter to include any and all such materials listed in
any federal, state or local law, code or ordinance and all rules and regulations
promulgated thereunder, as hazardous or potentially hazardous), or (vi) other
environmental, health or safety matters. A true, accurate and complete list of
all such permits, licenses, certificates and approvals will be made available at
Bank's request.
-9-
(c) Borrower and Guarantor have received no notice of, and neither
knows of nor suspect, facts which might constitute any violations of any
federal, state or local environmental, health or safety laws, codes or
ordinances and any rules or regulations promulgated thereunder with respect to
its business, operations, assets, equipment, property, leaseholds or other
facilities.
(d) Except in accordance with a valid governmental permit, license,
certificate of approval attached hereto, there has been no emission, spill,
release or discharge into or upon (i) the air, (ii) soils or any improvements
located thereon, (iii) surface water or groundwater, or (iv) the sewer, septic
system or waste treatment, storage or disposal system servicing the premises, of
any toxic or hazardous substances or wastes at or from the premises in amounts
that would require corrective action; and accordingly the premises contain no
such toxic or hazardous substances or wastes above amounts that would require
corrective action.
(e) Except where Borrower or Guarantor have provided written
notification to Bank, there has been no complaint, order, directive, claim,
citation or notice by any governmental authority or any person or entity with
respect to (i) air emissions, (ii) spills, releases or discharges to soils or
improvements located thereon, surface water, groundwater or the sewer, septic
system or waste treatment, storage or disposal systems servicing the premises,
(iii) noise emissions, (iv) solid or liquid waste disposal, (v) the use,
generation, storage, transportation or disposal of toxic or hazardous substances
or waste or (vi) other environmental, health or safety matters affecting the
Borrower, Guarantor or its business, operations, assets, equipment, property,
leaseholds, or other facilities.
Section 8.3. BORROWER'S AND GUARANTOR'S LIABILITY. Borrower and
Guarantor have no indebtedness, obligation or liability, absolute or contingent,
matured or not matured, with respect to the storage, treatment, clean-up or
disposal of any solid wastes, hazardous wastes or other toxic or hazardous
substances (including without limitation any such indebtedness, obligation or
liability with respect to any current regulation, law or statute regarding such
storage, treatment, clean-up or disposal).
Section 8.4. AFFIRMATIVE COVENANTS. Borrower and Guarantor will,
unless Bank shall otherwise consent in writing:
(a) Be and remain in compliance in all material respects with the
provisions of all federal, state and local environmental, health and safety
laws, codes and ordinances and all rules and regulations issued thereunder;
(b) Notify the Bank immediately of any notice of a hazardous discharge
or environmental complaint received from any governmental agency or any other
party;
(c) Notify the Bank immediately of any hazardous discharge from or
affecting its premises; and
(i) Immediately contain and remove the same, in compliance in
all material respects with all applicable laws; and
(ii) Promptly pay any fine or penalty assessed in connection
therewith;
(d) Permit the Bank to inspect the premises, to conduct tests thereon,
and to inspect all books, correspondence and records pertaining thereto; and
(e) At the Bank's request, and at the Borrower's and Guarantor's
expense, provide a report to Bank of a qualified environmental engineer,
satisfactory in scope, form, and content to the Bank, and such other and further
assurances reasonably satisfactory to the Bank that the condition has been
corrected.
Section 8.5. INDEMNIFICATION. Borrower and Guarantor hereby agree to
defend, indemnify, and hold the Bank harmless from and against any and all
claims, damages, judgments, penalties, costs and expenses (including reasonable
attorney fees and court costs now or hereafter arising from the aforesaid
enforcement of this clause) arising directly or indirectly from the activities
of Borrower and Guarantor, their predecessors in interest, or third parties with
whom it has a contractual relationship, or arising directly or indirectly from
the violation of any environmental protection, health or safety law, whether
such claims are asserted by any governmental agency or any other person. This
indemnity shall survive termination of this Agreement.
-10-
ARTICLE IX -- MISCELLANEOUS
Section 9.1. CASH COLLATERAL ACCOUNT. Upon request of Bank, Borrower
agrees to establish with Bank cash collateral account or dominion of funds
arrangement whereby all proceeds secured to Bank are deposited directly with
Bank.
Section 9.2. WAIVER. No delay or failure of Bank, in exercising any
right, power or privilege hereunder, shall affect such right, power or
privilege; nor shall any single or partial exercise thereof or any abandonment
or discontinuance of steps to enforce such a right, power or privilege
hereunder, shall affect such right, power or privilege. The rights and remedies
of Bank hereunder are cumulative and not exclusive. Any waiver, permit, consent
or approval of any kind to Bank, of any breach or default hereunder, or any such
waiver of any provisions or conditions hereof, must be in writing and shall be
effective only to the extent set forth in such writing.
Section 9.3. JURY WAIVER. Borrower and Guarantor expressly waive any
right to a trial by jury in any action or proceedings to enforce or defend any
rights hereunder or under any amendment, instrument, document or agreement
delivered, or which may hereafter be delivered, to or by Borrower or Guarantor.
Section 9.4. NOTICES. All notices, requests and demands given to or
made upon the respective parties shall be deemed to have been given or made when
deposited in the mail, postage prepaid, and addressed as follows:
Borrower: TENT Finance, Inc.
300 Crescent Court, Suite 850
Attn: James K. Zielke
Dallas, Texas 75201
Bank: INTRUST Bank, N.A.
P.O. Box One
Attn: Bruce A. Long, Sr. Vice President
Wichita, KS 67201
Guarantor: As Set Forth On Attachment "A".
Section 9.5. WRITTEN AGREEMENTS. THIS LOAN AGREEMENT, TOGETHER WITH
OTHER WRITTEN AGREEMENTS OF THE PARTIES, IS THE FINAL EXPRESSION OF THE
AGREEMENT BETWEEN THE BANK, THE BORROWER AND GUARANTOR, AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT BETWEEN
THE PARTIES. ANY NON-STANDARD TERM MUST BE WRITTEN BELOW TO BE ENFORCEABLE.
BY SIGNING BELOW THE PARTIES AFFIRM THERE ARE NO UNWRITTEN AGREEMENTS
BETWEEN THEM.
"BANK" "BORROWER"
INTRUST BANK, N.A. TENT FINANCE, INC.
By: /s/ BRUCE A. LONG By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Bruce A. Long, Sr. Vice President Gary M. Judd, President
Total Entertainment Restaurant Corp.
By: /s/ GARY M. JUDD
--------------------------------
Gary M. Judd, President & COO
-11-
"GUARANTOR"
-----------
ALABAMA FOX & HOUND, INC. FOX & HOUND OF ARIZONA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
BaILEY'S SPORTS GRILLE F/K/A
B.R.T. DUCK HUNTING CLUB, INC. (NON PROFIT) FOX & HOUND OF LITTLETON, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF COLORADO, INC. FOX & HOUND OF TEXAS, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
F & H RESTAURANT CORP. BAILEY'S SPORTS GRILLE, INC. FKA
BSGI, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF INDIANA, INC. TENT MANAGEMENT, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
F & H OF KENNESAW, INC. F & H RESTAURANT OF GEORGIA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF KANSAS, INC. FOX & HOUND OF ILLINOIS, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-12-
FOX & HOUND OF MARYLAND, INC. F & H OF IOWA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF MISSOURI, INC. FOX & HOUND OF LOUISIANA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF NEW JERSEY, INC. FOX & HOUND OF MICHIGAN, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
NORTH CAROLINA FOX & HOUND, INC. FOX & HOUND OF NEBRASKA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF OKLAHOMA, INC. FOX & HOUND OF NEW MEXICO, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF TENNESSEE, INC. FOX & HOUND OF OHIO, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
DOWNTOWN BEVERAGE CORP. PENNSYLVANIA FOX & HOUND, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FUQUA BEVERAGE CORP. GUADALUPE BEVERAGE CORP.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-13-
FOX & HOUND OF HOUSTON #2, LTD., FOX & HOUND OF DALLAS #3, LTD.,
F & H RESTAURANTS OF TEXAS, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF HOUSTON #3, LTD., JACKSON BEVERAGE CORPORATION F/K/A
F & H RESTAURANTS OF TEXAS, INC., N. COLLINS BEVERAGE, INC.
GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
F & H RESTAURANTS OF TEXAS, INC. RAIDER BEVERAGE CORPORATION
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF LEWISVILLE, LTD., FOX & HOUND OF SAN ANTONIO, LTD.,
F & H RESTAURANT CORP., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
MIDWAY ENTERTAINMENT, LTD., FOX & HOUND OF LUBBOCK, LTD.,
FOX & HOUND II, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
CAMPBELL BEVERAGE CORP. FOX & HOUND CLUB (NONPROFIT)
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-14-
FOX & HOUND OF HOUSTON, LTD., FOX & HOUND OF AUSTIN, LTD.,
F & H RESTAURANTS OF TEXAS, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
ROCKET BEVERAGE CORPORATION FOX & HOUND, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
LEWISVILLE BEVERAGE CORP. (NONPROFIT) FOX & HOUND II, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF FORT WORTH, LTD., FOX & HOUND OF DALLAS, LTD.,
Fox & Hound, Inc., General Partner F & H Restaurants of Texas, Inc.,
General Partner
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
SHENANDOAH BEVERAGE CORP. BRYANT BEVERAGE CORPORATION
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
505 ENTERTAINMENT, LTD., N. COLLINS ENTERTAINMENT, LTD.,
FOX & HOUND, INC., GENERAL PARTNER FOX & HOUND, INC., GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF VIRGINIA, INC. SKILLMAN BEVERAGE CORP. (NONPROFIT)
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF RICHARDSON, LTD.,
F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER
By: /s/ GARY M. JUDD
---------------------------------
Gary M. Judd, President
-15-
Section 9.6. KANSAS LAW APPLICABLE. This Agreement shall be construed
in accordance with the laws of the State of Kansas, without regard to principles
of conflicts of laws, and applicable federal law. Borrower expressly agrees that
jurisdiction and venue for all legal proceedings filed in connection herewith
shall lie exclusively in Sedgwick County, Kansas.
Section 9.7. OTHER LOAN DOCUMENTS. Borrower and Guarantor understands
and agrees that it is additionally bound by the terms and conditions of the
other Loan Documents, which such terms and conditions are incorporated herein
and made a part of this Agreement. To the extent that any term or provision
contained in other Loan Documents conflicts with a term or provision of this
Agreement, the term or provision providing the Bank the most security or the
greatest right shall control.
Section 9.8. PREVIOUS SECURITY AGREEMENTS. Any security interest
previously granted to Bank by Borrower and/or Guarantor shall survive and
continue to exist in priority.
Section 9.9. REPLACEMENT OF PRIOR LOAN AGREEMENTS. This Agreement is
intended to fully supersede and replace all prior loan agreements and amendments
thereto.
Section 9.10. BINDING EFFECT. The rights and obligations of the parties under
this Agreement shall inure to the benefit of, and shall be binding upon their
heirs, personal representatives, successors and assigns.
Section 9.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same agreement.
-16-
IN WITNESS WHEREOF, the parties have executed this Agreement the day
first above written.
"BANK" "BORROWER"
INTRUST BANK, N.A. TENT FINANCE, INC.
By: /s/ BRUCE A. LONG By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Bruce A. Long, Sr. Vice President Gary M. Judd, President
Total Entertainment Restaurant Corp.
By: /s/ GARY M. JUDD
--------------------------------
Gary M. Judd, President & COO
"GUARANTOR"
-----------
ALABAMA FOX & HOUND, INC. FOX & HOUND OF ARIZONA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
BaILEY'S SPORTS GRILLE F/K/A
B.R.T. DUCK HUNTING CLUB, INC. (NON PROFIT) FOX & HOUND OF LITTLETON, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF COLORADO, INC. FOX & HOUND OF TEXAS, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
F & H RESTAURANT CORP. BAILEY'S SPORTS GRILLE, INC. FKA
BSGI, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF INDIANA, INC. TENT MANAGEMENT, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-17-
F & H OF KENNESAW, INC. F & H RESTAURANT OF GEORGIA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF KANSAS, INC. FOX & HOUND OF ILLINOIS, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF MARYLAND, INC. F & H OF IOWA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF MISSOURI, INC. FOX & HOUND OF LOUISIANA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF NEW JERSEY, INC. FOX & HOUND OF MICHIGAN, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
NORTH CAROLINA FOX & HOUND, INC. FOX & HOUND OF NEBRASKA, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF OKLAHOMA, INC. FOX & HOUND OF NEW MEXICO, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF TENNESSEE, INC. FOX & HOUND OF OHIO, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-18-
DOWNTOWN BEVERAGE CORP. PENNSYLVANIA FOX & HOUND, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FUQUA BEVERAGE CORP. GUADALUPE BEVERAGE CORP.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF HOUSTON #2, LTD., FOX & HOUND OF DALLAS #3, LTD.,
F & H RESTAURANTS OF TEXAS, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF HOUSTON #3, LTD., JACKSON BEVERAGE CORPORATION F/K/A
F & H RESTAURANTS OF TEXAS, INC., N. COLLINS BEVERAGE, INC.
GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
F & H RESTAURANTS OF TEXAS, INC. RAIDER BEVERAGE CORPORATION
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF LEWISVILLE, LTD., FOX & HOUND OF SAN ANTONIO, LTD.,
F & H RESTAURANT CORP., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
MIDWAY ENTERTAINMENT, LTD., FOX & HOUND OF LUBBOCK, LTD.,
FOX & HOUND II, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-19-
CAMPBELL BEVERAGE CORP. FOX & HOUND CLUB (NONPROFIT)
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF HOUSTON, LTD., FOX & HOUND OF AUSTIN, LTD.,
F & H RESTAURANTS OF TEXAS, INC., F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
ROCKET BEVERAGE CORPORATION FOX & HOUND, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
LEWISVILLE BEVERAGE CORP. (NONPROFIT) FOX & HOUND II, INC.
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF FORT WORTH, LTD., FOX & HOUND OF DALLAS, LTD.,
Fox & Hound, Inc., General Partner F & H Restaurants of Texas, Inc.,
General Partner
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
SHENANDOAH BEVERAGE CORP. BRYANT BEVERAGE CORPORATION
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
505 ENTERTAINMENT, LTD., N. COLLINS ENTERTAINMENT, LTD.,
FOX & HOUND, INC., GENERAL PARTNER FOX & HOUND, INC., GENERAL PARTNER
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
FOX & HOUND OF VIRGINIA, INC. SKILLMAN BEVERAGE CORP. (NONPROFIT)
By: /s/ GARY M. JUDD By: /s/ GARY M. JUDD
--------------------------------- --------------------------------
Gary M. Judd, President Gary M. Judd, President
-20-
FOX & HOUND OF RICHARDSON, LTD.,
F & H RESTAURANTS OF TEXAS, INC.,
GENERAL PARTNER
By: /s/ GARY M. JUDD
---------------------------------
Gary M. Judd, President
-21-