EXHIBIT 2.2
CLOSING AGREEMENT
AND AMENDMENT TO MERGER AGREEMENT
THIS CLOSING AGREEMENT AND AMENDMENT TO MERGER AGREEMENT (this
"Agreement") is entered into as of May 11, 2000, by and among Red ▇▇▇▇▇
International, Inc., a Nevada corporation ("Buyer"), Red ▇▇▇▇▇ Holding Co.,
Inc., a Nevada corporation ("Sub"), The ▇▇▇▇▇▇ Group Company, a Delaware
corporation (the "Company") and the stockholders of the Company (the
"Stockholders"). Terms used herein and not otherwise defined shall have the
meaning assigned to them in that certain Agreement and Plan of Merger, dated
February 18, 2000, by and among Buyer, Red ▇▇▇▇▇ Holding Co., Inc., a Nevada
corporation and a wholly-owned subsidiary of Buyer, the Company, the
Stockholders, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇ (the "Merger Agreement").
R E C I T A L S
- - - - - - - -
WHEREAS, Buyer, the Company and the Stockholders are parties to the
Merger Agreement; and
WHEREAS, certain conditions to the Closing of the transactions
contemplated by the Merger Agreement have not been satisfied; and
WHEREAS, the parties hereto desire to amend the Merger Agreement,
waive certain conditions to the Closing, and consummate the Closing on the terms
and conditions set forth in this Agreement.
A G R E E M E N T
- - - - - - - - -
In consideration of the mutual promises contained herein and intending
to be legally bound, the parties hereto agree as follows:
Section 1. Financing. Buyer hereby waives the condition set forth in
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Section 7.18 of the Merger Agreement, and the Company and the Stockholders
hereby waive the condition set forth in Section 8.15 of the Merger Agreement,
requiring that Buyer enter into a new credit facility to refinance its existing
credit facilities with Japanese banks upon terms and conditions reasonably
satisfactory to Buyer, the Company and the Stockholders. Without limiting the
effect of the foregoing waiver, the parties acknowledge and agree that the terms
and conditions of any stock pledge agreement required in connection with Buyer's
new credit facility shall be subject to review and approval by the stockholders
of Buyer (including the Stockholders) who may be asked to pledge shares of Buyer
as collateral for the credit facility, such approval not to be unreasonably
withheld.
Section 2. Indemnity for Certain Guaranties. Following the Closing,
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Buyer will continue to use its commercially reasonable efforts to cause the
Stockholders to be released from the guaranties and assurances of indebtedness
and lease obligations identified on Exhibit A attached hereto (collectively, the
"Guaranties"). Until such time as the Stockholders are released from the
Guaranties, Buyer agrees to defend and indemnify each of the Stockholders
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from and against any and all costs, claims, damages, liabilities and losses
incurred or suffered by any of such Stockholders, directly or indirectly, as a
result of, or based upon or arising out of the performance by the Stockholders
or by Buyer of any of the obligations of payment or performance subject to such
Guaranties; provided, however, that the foregoing indemnity shall in no way
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limit or reduce the obligations of the Stockholders to indemnify Buyer for any
Covered Liabilities (as defined in the Merger Agreement) pursuant to the Merger
Agreement. Each of the Company and the Stockholders acknowledges that the
foregoing provisions satisfy the closing condition set forth in Section 8.9 of
the Merger Agreement.
Section 3. Capitalization of Pre-Opening Costs. The parties agree that
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any pre-opening costs incurred by the Company prior to the Closing Date in
connection with the Broadmoor/Colorado Springs restaurant shall be capitalized
for purposes of preparing the Closing Balance Sheet pursuant to Section 2.9 of
the Merger Agreement.
Section 4. Merger Consideration.
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(a) Section 2.8(a) of the Merger Agreement is hereby amended and
restated to read in its entirety as follows:
"(a)(i) At the Effective Time, by virtue of the Merger and without any
action on the part of Buyer, Sub, the Company or any of their respective
stockholders, each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into and
represent the right to receive the following:
(A) Subject to Section 2.8(c), a number of shares of
Buyer Common Stock (rounded to the nearest whole share) determined by
dividing 5,000,000 shares of Buyer Common Stock, subject to adjustment
as set forth in Section 2.9, by the number of issued and outstanding
shares of Company Common Stock on a Fully-Diluted Basis immediately
prior to the Effective Time; and
(B) At the election of each Stockholder, (1) an amount
in cash determined by dividing $10,000,000, subject to adjustment as
set forth in Section 2.9, by the number of issued and outstanding
shares of Company Common Stock on a Fully-Diluted Basis immediately
prior to the Effective Time or (2) an amount in Debentures determined
by dividing $10,000,000, subject to adjustment as set forth in Section
2.9, by the number of issued and outstanding shares of Company Common
Stock on a Fully-Diluted Basis immediately prior to the Effective
Time. Each Stockholder shall notify Buyer of their election under this
Section 2.8(a)(i)(B) at least three (3) business days prior to the
Closing Date.
(ii) At the Effective Time, by virtue of the Merger and
without any action on the part of Buyer, Sub, the Company or any of their
respective stockholders, each of the 34,528 shares of Company Common Stock
issued and outstanding and registered in the name of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
immediately prior to the Effective Time shall, in addition to the
consideration specified in subparagraph (a)(i) above, be converted into and
represent the right to receive the following additional consideration:
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(A) 13.90616 shares of Buyer Common Stock (equal to an
aggregate of 480,152 shares), subject to Section 2.8(c) and subject to
adjustment as set forth in Section 2.9; and
(B) $27.81224 principal amount in Debentures (equal to
an aggregate of $960,301 principal amount of Debentures), subject to
adjustment as set forth in Section 2.9.
(iii) For purposes of this Agreement:
(A) the consideration referenced in subparagraphs
(a)(i)(A) and (a)(ii)(A) of this Section 2.8 is collectively referred to
as the "Stock Merger Consideration;"
(B) the cash consideration referenced in clause (1) of
subparagraph (a)(i)(B) of this Section 2.8 is referred to as the "Cash
Merger Consideration;" and
(C) the Debentures to be issued pursuant to clause (2)
of subparagraph (a)(i)(B) and pursuant to subparagraph (a)(ii)(B) of
this Section 2.8 are collectively referred to as the "Debenture Merger
Consideration."
(b) In lieu of the Cash Merger Consideration to be paid to the
Stockholders electing Cash Merger Consideration pursuant to Section 2.8 of the
Merger Agreement, the parties hereby agree that each such Stockholder shall
receive at the Closing a promissory note in the form attached hereto as Exhibit
B in the principal amount of the Cash Merger Consideration to which such
Stockholder would otherwise be entitled pursuant to Section 2.8 of the Merger
Agreement."
Section 5. Accrual of Vacation Payments. For purposes of preparing the
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Closing Balance Sheet, the accrued vacation amount shall be the amount
calculated on the date of completion of the Closing Balance Sheet and shall take
into account any changes, facts, circumstances or other information that (a)
occurs or becomes known between the Closing Date and the date that the Closing
Balance Sheet is completed, or (b) is reasonably expected to occur prior to
January 1, 2001.
Section 6. Amendment to the Merger Agreement. The Stockholders
---------------------------------
acknowledge that this Agreement represents an amendment to the Merger Agreement,
and hereby consent to and approve such amendment pursuant to the authority of
Section 228 of the Delaware General Corporation Law.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the day and year first above written.
RED ▇▇▇▇▇ INTERNATIONAL, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
RED ▇▇▇▇▇ HOLDING CO., INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
THE ▇▇▇▇▇▇ GROUP COMPANY,
a Delaware corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
THE STOCKHOLDERS
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee
of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee of
the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the day and year first above written.
RED ▇▇▇▇▇ INTERNATIONAL, INC.,
a Nevada corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
RED ▇▇▇▇▇ HOLDING CO., INC.,
a Nevada corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
THE ▇▇▇▇▇▇ GROUP COMPANY,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
THE STOCKHOLDERS
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee
of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee of
the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed as of the day and year first above written.
RED ▇▇▇▇▇ INTERNATIONAL, INC.,
a Nevada corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
RED ▇▇▇▇▇ HOLDING CO., INC.,
a Nevada corporation
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer
THE ▇▇▇▇▇▇ GROUP COMPANY,
a Delaware corporation
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Secretary
THE STOCKHOLDERS
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee
of the ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually and as the Trustee of
the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Intervivos Trust
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SHAMROCK INVESTMENT COMPANY,
a Washington general partnership
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇.▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SHAMROCK INVESTMENT COMPANY,
a Washington general partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ C.O.O.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇.▇. ▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SHAMROCK INVESTMENT COMPANY,
a Washington general partnership
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇.▇. ▇▇▇▇▇, ▇▇.
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Closing Agmt
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
SHAMROCK INVESTMENT COMPANY,
a Washington general partnership
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chief Operating Officer
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇.▇. ▇▇▇▇▇, ▇▇.
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▇.▇. ▇▇▇▇▇, ▇▇.
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EXHIBIT A
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GUARANTIES
As of the Closing Date, a release of the following guaranties and
assurances of indebtedness and lease obligations of the Company has not been
obtained:
COMPANY NOTES:
1. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ guaranty the Company's obligations due
ORIX USA Corporation, a Delaware corporation, under that certain Promissory Note
dated March __, 1996 in the principal sum of $500,000.00, the Loan Agreement and
Security Agreement executed in conjunction with the Promissory Note by the
Company (Arvada Restaurant).
2. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guaranty the obligations of the
Company due Captec Financial Group Funding Corporation under that certain
Promissory Note dated May 23, 1996 in the principal amount of $1,550,000.00 and
the Company's performance under the Leasehold Deed of Trust and Security
Agreement executed in conjunction with the Promissory Note (▇▇▇▇▇▇ Restaurant).
3. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇'▇ have agreed to guaranty the
obligations of the Company to General Electric Capital Business Asset Funding
Corporation in the original principal amount of $700,000.00 pursuant to a letter
agreement dated August 3, 1999 (Broadmoor Restaurant).
4. Promissory Note dated March 1, 1994 in the amount of $200,000.00 payable
to ▇▇▇▇ ▇▇▇▇▇▇▇ and executed by The ▇▇▇▇▇▇ Group Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
as Co-Borrowers and the Loan Agreement by and between ▇▇▇▇ ▇▇▇▇▇▇▇ as Lender and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Borrowers dated March 1, 1994.
(Chapel Hills Restaurant).
5. Installment Note and Security Agreement dated May 1, 1994 between
Columbia Credit Company as Lender and The ▇▇▇▇▇▇ Group Company d/b/a Red ▇▇▇▇▇
▇▇▇▇▇▇ and Spirits Emporium and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
Co-Borrowers in the principal amount of $700,000.00. (Kennewick Restaurant).
6. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guarantees the obligations of the Company to U.S. Bank
National Association under that certain Promissory Note dated March 17, 1999 in
the principal amount of $25,000.00 between The ▇▇▇▇▇▇ Group Company, as
Borrower, and U.S. Bank National Association, as Lender, and the performance of
the Company under the Commercial Security Agreement (Lakewood Restaurant).
7. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guaranty the Company's payment
and performance under the Term Note dated November 22, 1996 in the principal
amount of $876,698.94 between the Company as Debtor and Metlife Capital
Corporation as Holder and the
Exhibit A-1
Company's performance under the Security Agreement No. One, as amended.
(Highlands Ranch Restaurant).
8. Installment Note and Security Agreement dated December 13, 1995 in the
principal amount of $125,000.00 between Columbia Credit Corporation as Lender
and The ▇▇▇▇▇▇ Group Company d/b/a Red ▇▇▇▇▇ ▇▇▇▇▇▇ and Spirits Emporium and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Co-Borrower.
9. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guarantees the Company's payment and performance of
the Company's Promissory Note dated October 16, 1998 in the principal amount of
$800,000.00 between the Company as Borrower and U.S. Bank National Association
as Lender, as amended or modified and the Company's performance under any
agreement evidencing or securing the repayment of said indebtedness including,
without limitation:
(a) Business Loan Agreement dated October 16, 1998 in the principal
amount of $800,000.00 between The ▇▇▇▇▇▇ Group Company as Borrower and U.S. Bank
National Association as Lender, the performance of which is guaranteed by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
(b) Change in Terms Agreement dated February 22, 2000 between Borrower,
The ▇▇▇▇▇▇ Group Company, and Lender, U.S. Bank National Association. (unsigned
as of this date).
10. Commercial Guaranty of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (undated) to U.S. Bank
National Association pursuant to which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ individually guarantees
all of the obligations of the Company, whether now existing or hereafter
arising, to U.S. Bank National Association.
11. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guaranty the Company's payment
and performance under that certain Promissory Note dated January 24, 1996 in the
principal amount of $500,000.00 between the Company as Maker, and J.S.C. Holding
Company, Inc. Pension Trust, as Holder.
12. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guarantees the payment and performance of all
obligations of the Company under that certain Promissory Note dated December 1,
1998 between the Company as Borrower and U.S. Bank National Association as
Lender which secures payment of the principal amount of $100,000.00 due by the
Company to U.S. Bank National Association, as amended and modified, and the
Company's performance under any agreement evidencing or securing the repayment
of said indebtedness.
13. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guaranty the Company's payment
and performance of the indebtedness evidenced by that certain Term Note dated
May 5, 1999 in the amount of $733,672.67 between the Company, as Debtor, and GE
Capital BAF Corporation ("GE") formerly Metlife Capital Corporation, as Holder,
referencing Schedule No. 2226796-002, as amended or modified, and the Company's
performance under any agreement evidencing or securing the repayment of said
indebtedness.
Exhibit A-2
REAL PROPERTY LEASES:
1. Arapahoe (Englewood) Lease:
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a. Single User Building Lease (footer dated 10/15/91) between The
▇▇▇▇▇▇ Group Company, as Tenant and A&B Properties, Inc., as
Landlord, as amended.
b. The performance of The ▇▇▇▇▇▇ Group Company under the Lease is
personally guaranteed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
2. Arvada Lease:
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a. Standard Commercial Shopping Center Lease dated July 7, 1988 by
Arvada Marketplace Associates, Ltd., as Landlord and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Tenant, as amended and modified, the interest of Tenant is
now held by The ▇▇▇▇▇▇ Group Company.
b. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Investments, Inc.
guaranty the performance of the Tenant under the Lease.
3. Chapel Hills Lease (Jamboree):
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a. Lease Agreement dated May 11, 1987 between ▇▇▇▇ ▇. Olive, as
Lessor and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Lessee, as amended. The
interest of Lessor is now held by AEI Net Lease Income and Growth Fund XX
Limited Partnership and the interest of Lessee is held by The ▇▇▇▇▇▇ Group
Company.
b. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ guaranty the performance of the
Lessee under the Lease and are original Lessees thereunder.
c. Consent to Assignment of Lease and Guaranty and Amendment of
Guaranty dated February 24, 1994 between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to AEI Net Lease Income & Growth Fund XX Limited
Partnership.
4. Citadel Lease:
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a. Lease-Option Agreement dated October 5, 1983 between ▇▇▇▇ ▇. Olive,
as Lessor and Denver Restaurant Investments Co., as Lessee, as amended. The
interest of Lessee under the Lease is now held by The ▇▇▇▇▇▇ Group Company and
the interest of Lessor is now held by AEI Net Lease Income and Growth Fund XX
Limited Partnership.
b. The performance of the Lessee under the Lease is guaranteed by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Investments, Inc., ▇▇▇▇▇ ▇▇▇▇▇, and
Shamrock Investment Company.
Exhibit A-3
c. Consent to Assignment of Lease and Guaranty and Amendment of Guaranty
dated February 24, 1994 by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
Guarantors.
5. Fort ▇▇▇▇▇▇▇ Lease:
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a. Lease dated April 28, 1995 between Captec Acceptance Leasing
Corporation, as Landlord and The ▇▇▇▇▇▇ Group Company, as Tenant, as
amended by First Amendment to Lease dated May 10, 1995.
b. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ guaranty the payment and performance of Lessee's obligations under the
Lease.
6. Havana (Aurora) Lease:
---------------------
a. Lease (undated) between The Price Company, as Landlord and The ▇▇▇▇▇▇
Group Company, as Tenant, as amended.
b. Pursuant to a Guarantee of Lease, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ guarantees the
payment and performance by The ▇▇▇▇▇▇ Group Company of its obligations under the
Lease.
c. Pursuant to a Guarantee of Lease, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ guarantees the
payment and performance by The ▇▇▇▇▇▇ Group Company of its obligations under the
Lease.
7. Highlands Ranch Lease:
---------------------
a. Lease between Captec Net Lease Realty, Inc. and The ▇▇▇▇▇▇ Group
Company dated December 13, 1995, as amended.
b. The Lease Agreement is guaranteed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, jointly and severally.
8. Kennewick Building Lease:
-------------------------
a. Lease between Bonnyville Construction Company as Landlord and The
▇▇▇▇▇▇ Group Company as Tenant, dated November __, 1995 (footer dated 11/21/95),
as amended.
b. The obligations of the Tenant under the Lease are guaranteed by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to a Guaranty of Lease in favor of
Bonnyville Construction Company.
Exhibit A-4
9. Park ▇▇▇▇▇▇▇ Ground Lease
-------------------------
a. Ground Lease dated the 14th day of February 1997, between Park ▇▇▇▇▇▇▇
Malls, Ltd., a Colorado limited partnership, as Landlord, and The ▇▇▇▇▇▇ Group
Company, a Delaware corporation, as Tenant, as amended.
10. Corporate:
---------
a. Office Building Lease, The Terrace Building at DTC Bay, 511
Corporation, as Landlord, and The ▇▇▇▇▇▇ Group Company, a Delaware corporation,
d/b/a Red ▇▇▇▇▇ Restaurants, as Tenants, as amended.
EQUIPMENT LEASES:
1. ▇▇▇▇▇▇ Facility:
---------------
a. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ personally guarantees the payment and performance of
the Company under the Lease Agreement No. 06092 between the Company as Lessee
and Captec Financial Group, Inc., as Lessor, which Guaranty is dated May 17,
1996.
b. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ personally guarantees the payment and performance of
the Company under the Lease Agreement No. 06092 between the Company as Lessee
and Captec Financial Group, Inc., as Lessor, which Guaranty is dated May 17,
1996.
2. Fort ▇▇▇▇▇▇▇:
------------
a. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ personally guarantees the payment and performance of
the Company under the Lease Agreement No. 05827 between the Company as Lessee
and Captec Financial Group, Inc., as Lessor, which Guaranty is dated April 27,
1995.
b. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ personally guarantees the payment and performance of
the Company under the Lease Agreement No. 05827 between the Company as Lessee
and Captec Financial Group, Inc., as Lessor, which Guaranty is dated April 27,
1995.
3. Guarantee dated November 28, 1995 pursuant to which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
guarantees the payment of all obligations of the Company due Northwest Equipment
Finance, Inc., as now existing or arising in the future.
4. Guarantee dated November 28, 1995 pursuant to which ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
guarantees the payment of all obligations of the Company due Northwest Equipment
Finance, Inc., as now existing or arising in the future.
5. ▇▇▇▇▇ ▇▇▇▇▇▇ personally guarantees a motor vehicle lease dated February
12, 1999 between The Company, as Lessee, and ▇▇▇▇▇ ▇▇▇▇▇▇, BMV, Lessor.
Exhibit A-5
EXHIBIT B
---------
FORM OF PROMISSORY NOTE
Exhibit B-1
PROMISSORY NOTE
$_______________ Englewood Colorado
May __, 2000
FOR VALUE RECEIVED, Red ▇▇▇▇▇ International, Inc., a Nevada
corporation ("Borrower"), promises to pay to _______________________ ("Holder"),
at such place as may be designated in writing by Holder, the principal amount of
______________________ ($_____________), in lawful monies of the United States,
with interest on the unpaid principal amount at the rate of 10% per annum (the
"Note").
The unpaid principal balance of this Note, together with all unpaid
accrued interest thereon and any other sums payable by Borrower hereunder, shall
be due and payable upon the earlier of (i) November __, 2001; or (ii) such date
as Borrower shall have closed and received the proceeds from a bank or other
credit facility in an amount not less than $50 million.
Interest on the unpaid principal balance under this Note shall be paid
in arrears on the first business day of each month beginning on June 1, 2000 and
continuing monthly thereafter, until maturity, on which date the principal, and
unpaid interest and all other sums due under this Note shall be paid in full.
Interest on this Note shall be computed on this basis of a three hundred sixty
(360) day year and the actual number of days elapsed in the period for which
interest is payable.
Borrower represents and warrants that this Note issued for commercial,
investment and business purposes, and not for personal, family or household
purposes. Notwithstanding any other provision of this Note, interest and charges
payable by reason of the indebtedness evidenced by this Note, shall not exceed
the maximum would otherwise be payable, then such excess sums shall be construed
as having been immediately applied by Holder to the principal balance of this
Note when received. If at the time any such sum is received by Holder, the
principal balance of this Note has been paid in full, such sum shall be promptly
refunded by Holder to Borrower, less any sums due to Holder.
Borrower may prepay this Note in whole or in part without penalty at
any time together with interest due up to date of payment.
Borrower shall be in default of this Note if any payment of principal
or interest is not made within 10 days of the date when due hereunder. After
maturity, or after default, interest shall accrue on any unpaid installment of
principal or interest, as the case may be, at an annual rate equal to five
percentage points (5%) above the interest rate stated on this Note, until paid
in full.
This Note shall be binding on Borrower, its representatives and
successors and shall inure to the benefit of and shall be enforceable by Holder,
its successors and assigns. This Note may not be changed, modified, amended, or
terminated orally, but the foregoing may be
done in writing by authorized representatives of the parties. If Holder shall
institute legal action to enforce payment hereof, Borrower agrees, in addition
to any other payments required hereunder, to pay all reasonable expenses of
collection, including attorneys' fees.
This Note shall be governed by and construed in accordance with the laws
of the State of Colorado.
IN WITNESS THEREOF, Borrower has caused this Note to be executed and
delivered as of the date first above written.
RED ▇▇▇▇▇ INTERNATIONAL, INC.,
a Nevada corporation
By: Draft
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chief Financial Officer and Secretary
S-1
