-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N+VhWR+14xfjVCn62vbVAQy224e1v24/B93hUp+g774Bl3c5UItYgmAmq7haMJmH 2vFLEBhBQ8mj5I3wLGYnKA== 0001104659-05-021751.txt : 20050509 0001104659-05-021751.hdr.sgml : 20050509 20050509172006 ACCESSION NUMBER: 0001104659-05-021751 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050509 DATE AS OF CHANGE: 20050509 GROUP MEMBERS: JERRY G. BRASSFIELD GROUP MEMBERS: SHANN M. BRASSFIELD FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: GOLDEN RESOURTS INC CENTRAL INDEX KEY: 0001238883 IRS NUMBER: 000000000 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: 140 VICTORY LANE CITY: LOS GATOS STATE: CA ZIP: 95030 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BJs RESTAURANTS INC CENTRAL INDEX KEY: 0001013488 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 330485615 STATE OF INCORPORATION: CA FISCAL YEAR END: 1229 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-47661 FILM NUMBER: 05812826 BUSINESS ADDRESS: STREET 1: 16162 BEACH BOULEVARD STREET 2: SUITE 100 CITY: HUNTINGTON BEACH STATE: CA ZIP: 92647 BUSINESS PHONE: 7148483747 MAIL ADDRESS: STREET 1: 16162 BEACH BOULEVARD STREET 2: SUITE 100 CITY: HUNTINGTON BEACH STATE: CA ZIP: 92647 FORMER COMPANY: FORMER CONFORMED NAME: CHICAGO PIZZA & BREWERY INC DATE OF NAME CHANGE: 19960614 SC 13D/A 1 a05-9012_2sc13da.htm SC 13D/A

 

 

UNITED STATES

 

 

SECURITIES AND EXCHANGE
COMMISSION

 

 

Washington, D.C. 20549



 

SCHEDULE 13D/A

 

Under the Securities Exchange Act of 1934
(Amendment No. 3 for Jerry G. Brassfield and Shann M. Brassfield
and Amendment No. 5 for Golden Resorts, Inc.) (1)

BJ’s Restaurants, Inc.

(Name of Issuer)

 

Common Stock, no par value per share

(Title of Class of Securities)

 

167889 10 4

(CUSIP Number)

 

Shann Brassfield
Golden Resorts, Inc.
P.O. Box 1198
Los Gatos, California 95301
(408) 626-8950

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

May 2, 2005

(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

(1) The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 



 

CUSIP No.   167889 10 4

 

 

1.

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Golden Resorts, Inc.
94-2200197

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 ý

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
WC

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
Nevada

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
499,003

 

8.

Shared Voting Power 
None

 

9.

Sole Dispositive Power 
499,003

 

10.

Shared Dispositive Power 
None

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person 
499,003 shares

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11) 
2.2%(1)

 

 

14.

Type of Reporting Person (See Instructions)
CO

 


(1)   Based on 19,812,786 shares of BJ’s Restaurants, Inc. Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005.

 

2



 

 

1.

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Jerry G. Brassfield

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 ý

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
PF

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
2,903,728

 

8.

Shared Voting Power 
567,503 (1)

 

9.

Sole Dispositive Power 
2,903,728

 

10.

Shared Dispositive Power 
567,503 (1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person 
3,471,231 shares

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11) 
15.4% (2)

 

 

14.

Type of Reporting Person (See Instructions)
IN

 


(1)   The reporting person expressly disclaims beneficial ownership with regard to all shares held by Golden Resorts, Inc. and AutoFocus, Inc. except to the extent the reporting person’s pecuniary interest therein.

(2)   Based on 19,812,786 shares of BJ’s Restaurants, Inc. Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005.

 

3



 

 

1.

Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only)
Shann M. Brassfield

 

 

2.

Check the Appropriate Box if a Member of a Group (See Instructions)

 

 

(a)

 ý

 

 

(b)

 o

 

 

3.

SEC Use Only

 

 

4.

Source of Funds (See Instructions)
PF

 

 

5.

Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)     o

 

 

6.

Citizenship or Place of Organization
United States

 

Number of
Shares
Beneficially
Owned by
Each
Reporting
Person With

7.

Sole Voting Power
141,456

 

8.

Shared Voting Power 
501,597(1)

 

9.

Sole Dispositive Power 
141,456

 

10.

Shared Dispositive Power 
501,597(1)

 

 

11.

Aggregate Amount Beneficially Owned by Each Reporting Person 
643,053 shares

 

 

12.

Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   o

 

 

13.

Percent of Class Represented by Amount in Row (11) 
2.9% (2)

 

 

14.

Type of Reporting Person (See Instructions)
IN

 


(1)   The reporting person expressly disclaims beneficial ownership with respect to all shares held by Golden Resorts, Inc. except to the extent of the reporting person’s pecuniary interest therein.

(2)   Based on 19,812,786 shares of BJ’s Restaurants, Inc. Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005.

 

4



 

This statement relating to BJ’s Restaurants, Inc., a California corporation (“BJ’s Restaurants”), is being filed as (1) Amendment No. 3 to Schedule 13D to amend the Schedule 13D filed by Mr. Jerry G. Brassfield and Mr. Shann M. Brassfield with the Securities and Exchange Commission on February 22, 2002 as amended by Amendment No. 1 thereto filed with Securities and Exchange Commission on January 10, 2003 and Amendment No. 2 thereto filed with the Securities and Exchange Commission on January 22, 2004; and (2) Amendment No. 5 to Schedule 13D to amend the Schedule 13D filed by Golden Resorts, Inc. with the Securities and Exchange Commission on January 29, 2001, as amended by Amendment No. 1 thereto filed with the Securities and Exchange Commission on May 14, 2001; Amendment No. 2 thereto filed with the Securities and Exchange Commission on February 22, 2002; Amendment No. 3 thereto filed with the Securities and Exchange Commission on January 10, 2003 and Amendment No. 4 thereto filed with the Securities and Exchange Commission on January 22, 2004.

 

On May 2, 2005, BJ Chicago, LLC distributed all of its shares of BJ’s Restaurants Common Stock (as defined below) pro rata to its members in connection with the planned dissolution of BJ Chicago.  The members of BJ Chicago determined to dissolve that entity because they concluded that the administrative burdens of maintaining the entity outweighed its benefits.  The members now hold directly the same number of shares of BJ’s Restaurants Common Stock that they previously held indirectly through BJ Chicago. 

 

The Jacmar Companies and entities affiliated with Jacmar’s chairman and chief executive officer William H. Tilley owned 41.67% of the membership interests in BJ Chicago, and Golden Resorts, Inc. and its director Jerry G. Brassfield owned 54.94% of the membership interests in BJ Chicago.  The balance of the interests were held by James A. Dal Pozzo and Shann M. Brassfield, who are officers of The Jacmar Companies and Golden Resorts, Inc., respectively, as well as directors of BJ’s Restaurants. 

 

When the members formed BJ Chicago in December 2000, they contemplated the possibility of selling additional membership interests in BJ Chicago to other investors and using the proceeds to purchase additional shares of BJ’s Restaurants (then known as Chicago Pizza & Brewery) and to make investments in other companies.  However, the members have not done so, and immediately prior to the distribution, BJ Chicago did not have any assets other than shares of BJ’s Restaurants Common Stock. 

 

Following the distribution, the shares of BJ’s Restaurants Common Stock continue to be subject to restrictions on transfer imposed by the federal securities laws because all of the members of BJ Chicago may be deemed to be affiliates of BJ’s Restaurants.

 

The former members will no longer share voting and investment power with respect to all shares of common stock owned by BJ Chicago.

 

Item 1.

Security and Issuer

This statement relates to shares of BJ’s Restaurants common stock, no par value per share (“BJ’s Restaurants Common Stock”).  The principal executive offices of BJ’s Restaurants are located at 16162 Beach Blvd., Suite 100, Huntington Beach, California 92647.

Item 2.

Identity and Background

(a)-(c), (f)  Golden Resorts, Inc. (“Golden Resorts”) is a Nevada corporation.  Golden Resorts’ address is P.O. Box 1198, Los Gatos, California 95301.  The principal business of Golden Resorts is investment and real estate development. 

 

5



 

Jerry G. Brassfield is a director of Golden Resorts and beneficially owns 44.7% of Golden Resorts’ outstanding stock.  Mr. J.G. Brassfield is sole trustee of The Jerry G. Brassfield Revocable Trust (“JGBRT”), a trust formed under the laws of the State of California.  The business address of Mr. J.G. Brassfield is P.O. Box 1198, Los Gatos, California 95301.

Shann M. Brassfield is the President of Golden Resorts and beneficially owns 28.9% of Golden Resorts’ outstanding stock.  Mr. S.M. Brassfield is sole trustee of The Shann M. Brassfield Revocable Trust (“SMBRT”), a trust formed under the laws of the State of California.  The business address of Mr. S.M. Brassfield is P.O. Box 1198, Los Gatos, California 95301.

Golden Resorts, J.G. Brassfield and S.M. Brassfield are referred to herein collectively as the “Filing Parties.”  The Filing Parties may be deemed to constitute a “group” for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and have entered into a Joint Filing Agreement, a copy of which is attached hereto as Exhibit 1, to file this statement jointly in accordance with the provisions of Rule 13d-1(k)(1) of the Exchange Act. 

Set forth below is a list of the directors and executive officers of Golden Resorts, each of whom is a citizen of the United States.  Unless otherwise listed, each person’s present principal occupation or employment is as an officer or director of Golden Resorts, and the principal business address of each officer is that of Golden Resorts.

Executive Officers and Directors of Golden Resorts:

Shann M. Brassfield, President and Director

Barbara Walters, Secretary and Treasurer

Jerry G. Brassfield, Director

Joseph A. Sperske, Director
Attorney
215 Hidden Creek Dr.
Auburn, California 95603

(d)-(e)  During the last five years, none of the persons named in this Item 2 has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of the proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.  

Item 3.

Source and Amount of Funds or Other Consideration

The information set forth in Item 5 is incorporated herein by reference.

The aggregate purchase price for the 3,200,000 shares of BJ’s Restaurants Common Stock acquired by BJ Chicago, LLC on August 10, 2001 was $8,000,000. The source of funds for the purchase of the shares of BJ’s Restaurants Common Stock acquired by BJ Chicago was from capital contributions made by its members. The members used working capital and their own personal funds to make their capital contributions.

 

6



 

The aggregate purchase price for the 661,358 shares of BJ’s Restaurants Common Stock acquired by BJ Chicago from significant shareholders of BJ’s Restaurants on March 13, 2001 was $1,818,734.50. The source of funds for the purchase of the shares of BJ’s Restaurants Common Stock acquired by BJ Chicago was from additional capital contributions made by its members. The members used working capital to make their capital contributions.

The aggregate purchase price for the 2,206,500 shares of BJ’s Restaurants Common Stock acquired by BJ Chicago on January 18, 2001 was $8,826,000. The source of funds for the purchase of the shares of BJ’s Restaurants Common Stock acquired by BJ Chicago was from capital contributions made by its members. The members used working capital to make their capital contributions.

On November 10, 2003, AutoFocus, Inc. purchased 1,500 shares of BJ’s Restaurants Common Stock for cash at a purchase price of $13.883 per share, and on March 9, 2004, AutoFocus, Inc. purchased 2,000 shares of BJ’s Restaurants Common Stock for cash at a purchase price of $13.64 per share.  It used working capital to make the purchases.

Mr. S.M. Brassfield purchased the number of shares of BJ’s Restaurants Common Stock for cash on the dates and at the purchase prices set forth in the table below.  He used personal funds to make the purchases.

 

Number of Shares

 

Date

 

Price Per Share

 

500

 

3/3/04

 

$

13.626

 

500

 

3/4/04

 

$

13.59

 

500

 

3/9/04

 

$

13.5884

 

500

 

3/12/04

 

$

13.434

 

145

 

5/3/04

 

$

13.73

 

143

 

5/4/04

 

$

13.98

 

138

 

5/5/04

 

$

14.44

 

142

 

5/6/04

 

$

14.06

 

142

 

5/7/04

 

$

13.95

 

147

 

5/12/04

 

$

13.59

 

145

 

5/20/04

 

$

13.70

 

 

On May 25, 2004, Mr. J.G. Brassfield purchased 5,000 shares of BJ’s Restaurants Common Stock for cash at a purchase price of $13.34 per share.  He used personal funds to make the purchase.

On November 2, 2004, Mr. J.G. Brassfield purchased 3,000 shares of BJ’s Restaurants Common Stock for cash at a purchase price of $15.19 per share.  He used personal funds to make the purchase.

On December 23, 2004, Mr. J.G. Brassfield received a distribution of 38,000 shares of BJ’s Restaurants Common Stock from the Greenley Trust of which he is a beneficiary.

On December 31, 2004 and January 15, 2005, Mr. J.G. Brassfield transferred 1,600 shares and 1,450 shares, respectively, to an account held by him as custodian for Kendra E. Brassfield, Mr. J.G. Brassfield’s daughter.

 

7



 

On December 31, 2004, Mr. J.G. Brassfield gifted 1,000 shares each to his three grandchildren and donated 2,459 shares to the Joann Brassfield Charitable Giving Foundation, of which Mr. S. Brassfield and Mr. Sperske are directors.

On May 2, 2005, BJ Chicago distributed to its members all 6,081,658 of the shares of BJ’s Restaurants Common Stock it held.  Upon the distribution, the members listed in the table below received the numbers of shares of BJ’s Restaurants Common Stock set forth next to their names:

 

Member

 

Shares Received in Distribution

 

 

 

 

 

Golden Resorts, Inc.

 

499,003

 

 

 

 

 

The Jacmar Companies

 

1,433,929

 

 

 

 

 

William H. Tilley, as Trustee

 

1,100,000

 

 

 

 

 

James A. Dal Pozzo

 

102,300

 

 

 

 

 

Jerry G. Brassfield Revocable Trust

 

2,844,126

 

 

 

 

 

Shann M. Brassfield Revocable Trust

 

102,300

 

 

 

 

 

TOTAL

 

6,081,658

 

 

Item 4.

Purpose of Transaction

Each of the persons named in Item 2 acquired its shares of BJ’s Restaurants Common Stock for investment purposes.  Upon the completion of BJ Chicago’s acquisition of shares on January 18, 2001, BJ’s Restaurants elected two designees of BJ Chicago to its Board of Directors.

Each of the persons named in Item 2 intends to monitor and evaluate its direct and indirect investments in BJ’s Restaurants on a continuing basis.  Based upon their evaluation from time to time, they may acquire additional shares of BJ’s Restaurants Common Stock, dispose of shares of BJ’s Restaurants Common Stock they beneficially own, submit one or more proposals for the consideration of management of BJ’s Restaurants, and/or communicate with other shareholders of BJ’s Restaurants.

Except as set forth above, none of the persons named in Item 2 has any plans or proposals that relate to or would result in any of the matters referred to in paragraphs (a) through (j), inclusive, of Item 4 of Schedule 13D.  The persons named in Item 2, however, may at any time and from time to time, review or reconsider their positions with respect to any of such matters.

Item 5.

Interest in Securities of the Issuer

(a)-(b)  Golden Resorts beneficially owns 499,003 shares of BJ’s Restaurants Common Stock. The shares of BJ’s Restaurants Common Stock beneficially owned by Golden Resorts represent approximately 2.2% of the issued and outstanding shares of BJ’s Restaurants Common Stock, based on 19,812,786 shares of BJ’s Restaurants Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005.

Mr. J.G. Brassfield beneficially owns 3,471,231 shares of BJ’s Restaurants Common Stock. The shares of BJ’s Restaurants Common Stock beneficially owned by Mr. J.G. Brassfield represent approximately 15.4% of the issued and outstanding shares of BJ’s Restaurants based on 19,812,786

 

8



 

shares of BJ’s Restaurants Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005.  The shares are beneficially owned by Mr. J.G. Brassfield as follows, and unless otherwise indicated, Mr. J.G. Brassfield has sole voting and dispositive power over such shares:

(1)           50,695 shares are held by Mr. J.G. Brassfield directly;

(2)           8,907 shares are held by Mr. J.G. Brassfield as custodian for Kendra E. Brassfield, Mr.

(3)           2,844,126 shares are held by JGBRT.  Mr. J.G. Brassfield is sole trustee of JGBRT and has sole voting and dispositive power over such shares; and

(4)           68,500 shares are held by AutoFocus, Inc., a California corporation, of which Mr. J.G. Brassfield is the President.  Mr. J.G. Brassfield has shared voting and dispositive power over such shares; and

(5)           499,003 shares are held by Golden Resorts, Inc., of which Mr. J.G. Brassfield is a director.  Mr. J.G. Brassfield has shared voting and dispositive power over such shares.

Mr. S.M. Brassfield beneficially owns 643,053 shares of BJ’s Restaurants Common Stock. The shares of BJ’s Restaurants Common Stock beneficially owned by Mr. S.M. Brassfield represent approximately 2.9% of the issued and outstanding shares of BJ’s Restaurants Common Stock, based on 19,812,786 shares of BJ’s Restaurants Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press release dated March 11, 2005. The shares are beneficially owned by Mr. S.M. Brassfield as follows, and unless otherwise indicated, Mr. S.M. Brassfield has sole voting and dispositive power over such shares:

(1)           102,300 shares are held by SMBRT.  Mr. S.M. Brassfield is the sole trustee of SMBRT and has sole voting and dispositive power over such shares;

(2)           3,002 shares are held directly by Mr. S.M. Brassfield;

(3)           2,594 shares are held by the Joann Brassfield Charitable Giving Foundation, of which Mr. S. Brassfield is a director.  Mr. S. Brassfield has shared voting and dispositive power over such shares;

(4)           499,003 shares are held by Golden Resorts, Inc., of which Mr. S. Brassfield is President.  Mr. S. Brassfield has shared voting and dispositive power over such shares; and

(5)           36,154 shares are subject to options that are held by Mr. S.M. Brassfield directly and are currently exercisable or will become exercisable within 60 days.

Joseph A. Sperske beneficially owns 103,332 shares of BJ’s Restaurants Common Stock. The shares of BJ’s Restaurants Common Stock beneficially owned by Mr. Sperske represent approximately 0.5% of the issued and outstanding shares of BJ’s Restaurants Common Stock, based on 19,812,786 shares of BJ’s Restaurants Common Stock outstanding as of February 18, 2005, as reported in BJ’s Restaurants’ Annual Report on Form 10-K for the fiscal year ended January 2, 2005, plus 2,750,000 shares issued in a March 2005 private placement transaction, as reported in BJ’s Restaurants’ press

 

9



 

release dated March 11, 2005.  The shares are beneficially owned by Mr. Sperske as follows, and Mr. Sperske has sole voting and dispositive power over such shares (except as indicated) but disclaims beneficial ownership of all of such shares:

(1)           15,704 shares are held by the Melissa Brassfield Revocable Trust, of which Mr. Sperske is sole trustee;

(2)           9,981 shares are held by the Robert Anthony Brassfield Revocable Trust, of which Mr. Sperske is sole trustee;

(3)           2,000 shares are held by the Chad Joseph Brassfield Trust, of which Mr. Sperske is sole trustee;

(4)           2,000 shares are held by the Jared Stanley Brassfield Trust, of which Mr. Sperske is sole trustee;

(5)           2,553 shares are held by Mr. Sperske as custodian for Shann D. Brassfield;

(6)           68,500 shares are held by AutoFocus, Inc., a California corporation, of which Mr. Sperske is a director.  Mr. Sperske has shared voting and dispositive power over such shares; and

(7)           2,594 shares are held by the Joann Brassfield Charitable Giving Foundation, of which Mr. Sperske is a director.  Mr. Sperske has shared voting and dispositive power over such shares.

Each of J.G. Brassfield and S.M. Brassfield disclaims beneficial ownership with respect to the 499,003 shares of BJ’s Restaurants Common Stock held by Golden Resorts except to the extent of his pecuniary interest therein, and each of Mr. J.G. Brassfield and Mr. Sperske disclaims beneficial ownership with respect to the 68,500 shares held by AutoFocus, Inc. except to the extent of his pecuniary interest therein.

 

10



 

On May 2, 2005, BJ Chicago distributed to its members all 6,081,658 of the shares of BJ’s Restaurants Common Stock it held.  Upon the distribution, the members listed in the table below received the numbers of shares of BJ’s Restaurants Common Stock set forth next to their names:

 

Member

 

Shares Received in Distribution

 

 

 

 

 

Golden Resorts, Inc.

 

499,003

 

 

 

 

 

The Jacmar Companies

 

1,433,929

 

 

 

 

 

William H. Tilley, as Trustee

 

1,100,000

 

 

 

 

 

James A. Dal Pozzo

 

102,300

 

 

 

 

 

Jerry G. Brassfield Revocable Trust

 

2,844,126

 

 

 

 

 

Shann M. Brassfield Revocable Trust

 

102,300

 

 

 

 

 

TOTAL

 

6,081,658

 

 

(d)-(e)  Not applicable.

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

On October 24, 2002, Golden Resorts entered into a $1,500,000 loan with Cupertino National Bank & Trust evidenced by a promissory note and related Commercial Pledge and Security Agreement with Cupertino National Bank & Trust, pursuant to which Golden Resorts pledged its allocable interest in the shares of BJ’s Restaurants Common Stock held by BJ Chicago.  To effectuate this pledge, BJ Chicago entered into a letter agreement with Greater Bay Bank and a Collateral Account Control Agreement with Cupertino National Bank & Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”), pursuant to which Cupertino National Bank & Trust was granted a security interest in 499,003 shares of Chicago Pizza Common Stock to be held by Merrill Lynch in a pledged collateral account.

On March 15, 2005, Golden Resorts entered into a new Commercial Pledge and Security Agreement with Heritage Bank of Commerce, replacing the prior agreement with Cupertino National Bank.  Pursuant to the new agreement, the loan amount was increased to $2,500,000 and Golden Resorts agreed to pledge the shares distributed to it by BJ Chicago to Heritage Bank of Commerce.  The letter agreement with Cupertino National Bank and the Collateral Account Control Agreement with Cupertino National Bank & Trust and Merrill Lynch were terminated.

Except as set forth above, to the knowledge of the Filing Parties, there are no contracts, arrangements, understandings or relationships (legal or otherwise) among any of the persons named in Item 2 or between any of the persons named in Item 2 and any other person with respect to any securities of Chicago Piazza, including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies. 

Item 7.

Material to Be Filed as Exhibits

1.             Joint Filing Agreement

2.             Commercial Pledge and Security Agreement dated March 15, 2005 between Golden Resorts, Inc. and Heritage Bank of Commerce.

 

11



 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated:   May 9, 2005

 

 

GOLDEN RESORTS, INC.

 

 

 

 

By:

/s/ Shann M. Brassfield

 

 

Name:

Shann M. Brassfield

 

Its:

President

 

 

 

 

 

 

 

JERRY G. BRASSFIELD

 

 

 

 

By:

/s/ Jerry G. Brassfield

 

 

Name:

Jerry G. Brassfield

 

 

 

 

 

 

 

SHANN M. BRASSFIELD

 

 

 

 

By:

/s/ Shann M. Brassfield

 

 

Name:

Shann M. Brassfield

 

12


EX-1 2 a05-9012_2ex1.htm EX-1

Exhibit 1

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Schedule 13D (including any and all amendments thereto) with respect to the common stock, no par value per share, of BJ’s Restaurants & Brewery, Inc., and further agree that this Joint Filing Agreement shall be included as an exhibit to such joint filings.

 

The undersigned further agree that each party hereto is responsible for the timely filing of such Schedule 13D and any amendments thereto, and for the completeness and accuracy of the information concerning such party contained therein; provided that no party is responsible for the completeness or accuracy of the information concerning any other filing party, unless such party knows or has reason to believe that such information is inaccurate.

 

This Joint Filing Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original instrument, but all of such counterparts together shall constitute but one agreement.

 

In evidence thereof the undersigned, being duly authorized, hereby execute this Joint Filing Agreement this 9th day of May, 2005.

 

 

BJ CHICAGO, LLC

 

 

 

 

By:

The Jacmar Companies

 

Its:

Manager

 

 

 

 

 

By:

/s/ JAMES A. DAL POZZO

 

 

 

Name:

James A. Dal Pozzo

 

 

Its:

President

 

 

 

 

By:

Golden Resorts, Inc.

 

Its:

Manager

 

 

 

 

 

By:

/s/ SHANN BRASSFIELD

 

 

 

Name:

Shann Brassfield

 

 

Its:

President

 

 

 

 

 

 

 

 

GOLDEN RESORTS, INC.

 

 

 

 

By:

/s/ SHANN M. BRASSFIELD

 

 

Name:

Shann M. Brassfield

 

Its:

President

 



 

 

JERRY G. BRASSFIELD

 

 

 

 

By:

/s/ JERRY G. BRASSFIELD

 

 

Name:

Jerry G. Brassfield

 

 

 

 

 

 

 

SHANN M. BRASSFIELD

 

 

 

 

By:

/s/ SHANN M. BRASSFIELD

 

 

Name:

Shann M. Brassfield

 


 

EX-2 3 a05-9012_2ex2.htm EX-2

 

Exhibit 2

 

COMMERCIAL PLEDGE AGREEMENT

 

Principal
$2,500,000.00

Loan Date
02-09-2005

Maturity
02-09-2008

Loan No.
5090000100

Call / Coll

Account

Officer
529

Initials

 

References in the shaded area are for Lenders use only and do not limit the applicability of this document to any particular loan or item.

Any item above containing “***” has been omitted due to text length limitations.

 

Borrower:

 

GOLDEN RESORTS. INC.

Lender:

Heritage Bank of Commerce

 

 

Post Office Box 1198

 

San Jose Office

 

 

Los Gatos, CA 95031

 

150 Almaden Boulevard

 

 

 

 

San Jose, CA 95113

Grantor:

 

BJ Chicago, LLC

 

 

 

 

2200 West Valley Boulevard

 

 

 

 

Alhambra, CA 91803

 

 

 

THIS COMMERCIAL PLEDGE AGREEMENT dated February 9, 2005, is made and executed among BJ Chicago, LLC (“Grantor”); GOLDEN RESORTS, INC. (“Borrower”); and Heritage Bank of Commerce (“Lender”).

 

GRANT OF SECURITY INTEREST.  For valuable consideration, Grantor grants to Lender a security interest in the Collateral to secure the Indebtedness and agrees that Lender shall have the rights stated in this Agreement with respect to the Collateral, in addition to all other rights which Lender may have by law.

 

COLLATERAL DESCRIPTION.  The word “Collateral” as used in this Agreement means all of Grantor’s property as described below (however owned if more than one), in the possession of Lender (or in the possession of a third party subject to the control of Lender), whether existing now or later and whether tangible or intangible in character, including without limitation each and all of the following:

 

All cash, securities, and other assets maintained with Merrill Lynch referred to as Account 25E-07495 for the benefit of BJ’s Chicago LLC.

 

BORROWER’S WAIVERS AND RESPONSIBILITIES.  Except as otherwise required under this Agreement or by applicable law, (A) Borrower agrees that Lender need not tell Borrower about any action or inaction Lender takes in connection with this Agreement; (B) Borrower assumes the responsibility for being and keeping informed about the Collateral; and (C) Borrower waives any defenses that may arise because of any action or inaction of Lender, including without limitation any failure of Lender to realize upon the Collateral or any delay by Lender in realizing upon the Collateral; and Borrower agrees to remain liable under the Note no matter what action Lender takes or fails to take under this Agreement.

 

GRANTOR’S REPRESENTATIONS AND WARRANTIES.  Grantor warrants that: (A) this Agreement is executed at Borrower’s request and not at the request of Lender; (B) Grantor has the full right, power and authority to enter into this Agreement and to pledge the Collateral to Lender; (C) Grantor has established adequate means of obtaining from Borrower on continuing basis information about Borrower’s financial condition; and (D) Lender has made no representation to Grantor about Borrower or Borrower’s creditworthiness.

 

GRANTOR’S WAIVERS.  Grantor waives all requirements of presentment, protest, demand, and notice of dishonor or non-payment to Borrower or Grantor, or any other party to the Indebtedness or the Collateral.  Lender may do any of the following with respect to any obligation of any Borrower, without first obtaining the consent of Grantor: (A) grant any extension of time for any payment, (B) grant any renewal, (C) permit any modification of payment terms or other terms, or (D) exchange or release any Collateral or other security.  No such act or failure to act shall affect Lender’s rights against Grantor or the Collateral.

 

REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL.  Grantor represents and warrants to Lender that:

 

Ownership.  Grantor is the lawful owner of the Collateral free and clear of all security interests, liens, encumbrances and claims of others except as disclosed to and accepted by Lender in writing prior to execution of this Agreement.

 

Right to Pledge.  Grantor has the full right, power and authority to enter into this Agreement and to pledge the Collateral.

 

Authority; Binding Effect.  Grantor has the full right, power and authority to enter into this Agreement and to grant a security interest in the Collateral to Lender.  This Agreement is binding upon Grantor as well as Grantor’s successors and assigns, and is legally enforceable in accordance with its terms.  The foregoing representations and warranties, and all other representations and warranties contained in this Agreement are and shall be continuing in nature and shall remain in full force and effect until such time as this Agreement is terminated or cancelled as provided herein.

 

No Further Assignment.  Grantor has not, and shall not, sell, assign, transfer, encumber or otherwise dispose of any of Grantor’s rights in the Collateral except as provided in this Agreement.

 

No Defaults.  There are no defaults existing under the Collateral, and there are no offsets or counterclaims to the same.  Grantor will strictly and promptly perform each of the terms, conditions, covenants and agreements, if any, contained in the Collateral which are to be performed by Grantor.

 

No Violation.  The execution and delivery of this Agreement will not violate any law or agreement governing Grantor or to which Grantor s a party, and its membership agreement does not prohibit any term or condition of this Agreement.

 

Financing Statements, Grantor authorizes Lender to file a UCC financing statement, or alternatively, a copy of this Agreement to perfect Lender’s security interest.  At Lender’s request, Grantor additionally agrees to sign all other documents that are necessary to perfect, protect, and continue Lender’s security interest in the Property.  Grantor will pay all filing fees, title transfer fees, and other fees and costs involved unless prohibited by law or unless Lender is required by law to pay such fees and costs.  Grantor irrevocably appoints Lender to execute documents necessary to transfer title if there is a default, Lender may file a copy of this Agreement as a financing statement.  If Grantor changes Grantor’s name or address, or the name or address of any person granting a security interest under this Agreement changes, Grantor will promptly notify the Lender of such change.

 

LENDER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL.  Lender may hold the Collateral until all Indebtedness has been paid and satisfied.  Thereafter Lender may deliver the Collateral to Grantor or to any other owner of the Collateral.  Lender shall have the following rights in addition to all other rights Lender may have by law:

 



 

Maintenance and Protection of Collateral.  Lender may, but shall not be obligated to, take such steps as it deems necessary or desirable to protect, maintain, insure, store, or care for the Collateral, inducing paying of any liens or claims against the Collateral.  This may include such things as hiring other people, such as attorneys, appraisers or other experts.  Lender may charge Grantor for any cost incurred in so doing.  When applicable law provides more than one method of perfection of Lender’s security interest, Lender may choose the method(s) to be used.  If the Collateral consists of stock, bonds or other investment property for which no certificate has been issued, Grantor agrees, at Lender’s request, either to request issuance of an appropriate certificate or to give instructions on Lender’s forms to the issuer, transfer agent, mutual fund company, or broker, as the case may be, to record on its books or records Lender’s security interest in the Collateral.

 

Income and Proceeds from the Collateral.  Lender may receive all Income and Proceeds and add it to the Collateral.  Grantor agrees to deliver to Lender immediately upon receipt, in the exact form received and without commingling with other property, all Income and Proceeds from the Collateral which may be received by, paid, or delivered to Grantor or for Grantor’s account, whether as an addition to, in discharge of, in substitution of, or in exchange for any of the Collateral.

 

Application of Cash.  At Lender’s option, Lender may apply any cash, whether included in the Collateral or received as income and Proceeds or through liquidation, sale, or retirement, of the Collateral, to the satisfaction of the Indebtedness or such portion thereof as Lender shall choose, whether or not matured.

 

Transactions with Others.  Lender may (1) extend time for payment or other performance, (2) grant a renewal or change in terms or conditions, or (3) compromise, compound or release any obligation, with any one or more Obligors, endorsers, or Guarantors of the Indebtedness as Lender deems advisable, without obtaining the prior written consent of Grantor, and no such act or failure to act shall affect Lender’s rights against Grantor or the Collateral.

 

All Collateral Secures Indebtedness.  All Collateral shall be security for the Indebtedness, whether the Collateral is located at one or more offices or branches of Lender.  This will be the case whether or not the office or branch where Borrower obtained Borrower’s loan knows about the Collateral or relies upon the Collateral as security.

 

Collection of Collateral.  Lender at Lender’s option may, but need not, collect the Income and Proceeds directly from the Obligors.  Grantor authorizes and directs the Obligors, if Lender decides to collect the Income and Proceeds, to pay and deliver to Lender all Income and Proceeds from the Collateral and to accept Lender’s receipt for the payments.

 

Power of Attorney.  Grantor irrevocably appoints Lender as Grantor’s attorney-in-fact, with full power of substitution, (a)  to demand, collect, receive, receipt for, sue and recover all Income and Proceeds and other sums of money and other property which may now or hereafter become due, owing or payable from the Obligors in accordance with the terms of the Collateral; (b) to execute, sign and endorse any and all instruments, receipts, checks, drafts and warrants issued in payment for the Collateral; (c) to settle or compromise any and all claims arising under the Collateral, and in the place and stead of Grantor, execute and deliver Grantor’s release and acquittance for Grantor; (d) to file any claim or claims or to take any action or institute or take part in any proceedings, either in Lender’s own name or in the name of Grantor, or otherwise, which in the discretion of Lender may seem to be necessary or advisable; and (e) to execute in Grantor’s name and to deliver to the Obligors on Grantor’s behalf, at the time and in the manner specified by the Collateral, any necessary instruments or documents.

 

Perfection of Security Interest.  Upon Lender’s request, Grantor will deliver to Lender any and all of the documents evidencing or constituting the Collateral.  When applicable law provides more than one method of perfection of Lender’s security interest, Lender may choose the method(s) to be used.  Upon Lender’s request, Grantor will sign and deliver any writings necessary to perfect Lender’s security interest.  Grantor hereby appoints Lender as Grantor’s irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect, amend, or to continue the security interest granted in this Agreement or to demand termination of filings of other secured parties.  This is a continuing Security Agreement and will continue in effect even though all or any part of the Indebtedness is paid in full and even though for a period of time Borrower may not be indebted to Lender.

 

LENDER’S EXPENDITURES.  If any action or proceeding is commenced that would materially affect Lender’s interest in the Collateral or if Grantor fails to comply with any provision of this Agreement or any Related Documents, including but not limited to Grantor’s failure to discharge or pay when due any amounts Grantor is required to discharge or pay under this Agreement or any Related Documents, Lender on Grantor’s behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Collateral and paying all costs for insuring, maintaining and preserving the Collateral.  All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor.  All such expenses will become a part of the Indebtedness and, at Lender’s option, will (A) be payable on demand; (B) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) be treated as a balloon payment which will be due and payable at the Note’s maturity.  The Agreement also will secure payment of these amounts.  Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default.

 

LIMITATIONS ON OBLIGATIONS OF LENDER.  Lender shall use ordinary reasonable care in the physical preservation and custody of the Collateral in Lender’s possession, but shall have no other obligation to protect the Collateral or its value.  In particular, but without limitation, Lender shall have no responsibility for (A) any depreciation in value of the Collateral or for the collection or protection of any Income and Proceeds from the Collateral, (B) preservation of rights against parties to the Collateral or against third persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers, tenders, or similar matters relating to any of the Collateral, or (D) informing Grantor about any of the above, whether or not Lender has or is deemed to have knowledge of such matters.  Except as provided above, Lender shall have no liability for depreciation or deterioration of the Collateral.

 

DEFAULT.  Each of the following shall constitute an Event of Default under this Agreement:

 

Payment Default.  Borrower fails to make any payment when due under the Indebtedness.

 

Other Defaults.  Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower or Grantor.

 

2



 

Default in Favor of Third Parties.  Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower’s property or Borrower’s or any Grantor’s ability to repay the Indebtedness or perform their respective obligations under this Agreement or any of the Related Documents.

 

False Statements.  Any warranty, representation or statement made or furnished to Lender by Borrower or Grantor or on Borrower’s or Grantor’s behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter.

 

Defective Collateralization.  This Agreement or any of the Related Documents ceases to be in full force and effect (including failure of any collateral document to create a valid and perfected security interest or lien) at any time and for any reason.

 

Insolvency.  The dissolution or termination of Borrower’s or Grantor’s existence as a going business, the insolvency of Borrower or Grantor, the appointment of a receiver for any part of Borrower’s or Grantor’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower or Grantor.

 

Creditor or Forfeiture Proceedings, Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or Grantor or by any governmental agency against any collateral securing the Indebtedness.  This includes a garnishment of any of Borrower’s or Grantor’s accounts, including deposit accounts, with Lender.  However, this Event of Default shall not apply if there is a good faith dispute by Borrower or Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower or Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute.

 

Insufficient Market Value of Securities. : The Collateral to loan percentage falls below 65%; and as a result of the deterioration of the market value of the Collateral, Borrower does not, by close of business ten (10) days after Borrower has received notice from Lender of the deterioration, either (1) reduce the amount of the Indebtedness in this Loan as required by Lender, or (2) pledge or grant an additional security interest to increase the value of the Collateral as required by Lender; and as a result of the deterioration of the market value of the Collateral, Borrower does not, by the close of business on the next business day after Borrower has received notice from Lender of the deterioration, either (1) reduce the amount of the Indebtedness in this loan as required by Lender or (2) pledge or grant an additional security interest to increase the value of the Collateral as required by Lender.

 

Events Affecting Guarantor.  Any of the preceding events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the Indebtedness or guarantor, endorser, surety, or accommodation party dies or becomes incompetent or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness.

 

Adverse Change.  A material adverse change occurs in Borrower’s or Grantor’s financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired.

 

Insecurity.  Lender in good faith believes itself insecure.

 

Cure Provisions.  It any default, other than a default in payment or failure to satisfy Lender’s requirement in the Insufficient Market Value of Securities section is curable and if Grantor has not been given a notice of a breach of the same provision of this Agreement within the preceding twelve (12) months, it may be cured if Grantor, after receiving written notice from Lender demanding cure of such default: (1) cures the default within ten (10) days; or (2) if the cure requires more than ten (10) days, immediately initiates steps which Lender deems in Lender’s sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.

 

RIGHTS AND REMEDIES ON DEFAULT.  If an Event of Default occurs under this Agreement, at any time thereafter, Lender may exercise any one or more of the following rights and remedies:

 

Accelerate Indebtedness.  Declare all Indebtedness, including any prepayment penalty which Borrower would be required to pay, immediately due and payable, without notice of any kind to Borrower or Grantor.

 

Collect the Collateral.  Collect any of the Collateral and, at Lender’s option and to the extent permitted by applicable law, retain possession of the Collateral while suing on the Indebtedness.

 

Sell the Collateral.  Sell the Collateral, at Lender’s discretion, as a unit or in parcels, at one or more public or private sales.  Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender shall give or mail to Grantor, and other persons as required by law, notice at least ten (10) days in advance of the time and place of any public sale, or of the time after which any private sale may be made.  However, no notice need be provided to any person who, after an Event of Default occurs, enters into and authenticates an agreement waiving that person’s right to notification of sale.  Grantor agrees that any requirement of reasonable notice as to Grantor is satisfied if Lender mails notice by ordinary mail addressed to Grantor at the last address Grantor has given Lender in writing.  If a public sale is held, there shall be sufficient compliance with all requirements of notice to the public by a single publication in any newspaper of general circulation in the county where the Collateral is located, setting forth the time and place of sale and a brief description of the property to be sold.  Lender may be a purchaser at any public sale.

 

Sell Securities.  Sell any securities included in the Collateral in a manner consistent with applicable federal and state securities laws.  If, because of restrictions under such laws, Lender is unable, or believes Lender is unable, to sell the securities in an open market transaction, Grantor agrees that Lender will have no obligation to delay sale until the securities can be registered.  Then Lender may make a private sale to one or more persons or to a restricted group of persons, even though such sale may result in a price that is less favorable than might be obtained in an open market transaction.  Such a sale will be considered commercially reasonable.  If any securities held as Collateral are “restricted securities” as defined in the Rules of the Securities and Exchange Commission (such as Regulation D or Rule 144) or the rules of state securities departments under state “Blue Sky” laws, or if Grantor or any other owner of the Collateral is an affiliate of  the issuer of the securities.

 

3



 

Rights and Remedies with Respect to Investment Property, Financial Assets and Related Collateral, In addition to other rights and remedies granted under this Agreement and under applicable law Lender may exercise any or all of the following rights and remedies:  (1) register with any issuer or broker or other securities intermediary any of the Collateral consisting of investment property or financial assets (collectively herein, “investment property”) in Lender’s sole name or in the name of Lender’s broker, agent or nominee; (2) cause any issuer, broker or other securities intermediary to deliver to Lender any of the Collateral consisting of securities, or investment property capable of being delivered; (3) enter into a control agreement or power of attorney with any issuer or securities intermediary with respect to any Collateral consisting of investment property, on such terms as Lender may deem appropriate, in its sole discretion, including without limitation, an agreement granting to Lender any of the rights provided hereunder without further notice to or consent by Grantor; (4) execute any such control agreement on Grantor’s behalf and in Grantor’s name, and hereby irrevocably appoints Lender as agent and attorney-in-fact, coupled with an interest, for the purpose of executing such control agreement on Grantor’s behalf; (5) exercise any and all rights of Lender under any such control agreement or power of attorney; (6) exercise any voting, conversion, registration, purchase, option, or other rights with respect to any Collateral; (7) collect, with or without legal action, and issue receipts concerning any notes, checks, drafts, remittances or distributions that are paid or payable with respect to any Collateral consisting of investment property.  Any control agreement entered with respect to any investment property shall contain the following provisions, at Lender’s discretion.  Lender shall be authorized to instruct the issuer, broker or other securities intermediary to take or to refrain from taking such actions with respect to the investment property as Lender may instruct, without further notice to or consent by Grantor.  Such actions may include without limitation the issuance of entitlement orders, account instructions, general trading or buy or sell orders, transfer and redemption orders, and stop loss orders.  Lender shall be further entitled to instruct the issuer, broker or securities intermediary to sell or to liquidate any investment property, or to pay the cash surrender or account termination value with respect to any and all investment property, and to deliver all such payments and liquidation proceeds to Lender.  Any such control agreement shall contain such authorizations as are necessary to place Lender in “control” of such investment collateral, as contemplated under the provisions of the Uniform Commercial Code, and shall fully authorize Lender to issue “entitlement orders” concerning the transfer, redemption, liquidation or disposition of investment collateral, in conformance with the provisions of the Uniform Commercial Code.

 

Foreclosure.  Maintain a judicial suit for foreclosure and sale of the Collateral.

 

Transfer Title.  Effect transfer of title upon sale of all or part of the Collateral.  For this purpose, Grantor irrevocably appoints Lender as Grantor’s attorney-in-fact to execute endorsements, assignments and instruments in the name of Grantor and each of them (if more than one) as shall be necessary or reasonable.

 

Other Rights and Remedies.  Have and exercise any or all of the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, at law, in equity, or otherwise.

 

Application of Proceeds.  Apply any cash which is part of the Collateral, or which is received from the collection or sale of the Collateral, to reimbursement of any expenses, including any costs for registration of securities, commissions incurred in connection with a sale, reasonable attorneys’ fees and court costs, whether or not there is a lawsuit and including any fees on appeal, incurred by Lender in connection with the collection and sale of such Collateral and to the payment of the Indebtedness of Borrower to Lender, with any excess funds to be paid to Grantor as the interests of Grantor may appear.  Borrower agrees, to the extent permitted by law, to pay any deficiency after application of the proceeds of the Collateral to the Indebtedness.

 

Election of Remedies.  Except as may be prohibited by applicable law, all of Lender’s rights and remedies, whether evidenced by this Agreement, the Related Documents, or by any other writing, shall be cumulative and may be exercised singularly or concurrently.  Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Agreement, after Grantor’s failure to perform, shall not affect Lender’s right to declare a default and exercise its remedies.

 

MISCELLANEOUS PROVISIONS.  The following miscellaneous provisions are a part of this Agreement:

 

Amendments.  This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement.  No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

 

Caption Headings.  Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.

 

Governing Law.  With respect to procedural matters related to the perfection and enforcement of Lender’s rights against the Collateral, this Agreement will be governed by federal law applicable to Lender and to the extent not preempted by federal law, the laws of the State of Delaware.  In all other respects, this Agreement will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the State of California without regard to its conflicts of law provisions.  However, if there ever is a question about whether any provision of this Agreement is valid or enforceable, the provision that is questioned will be governed by whichever state or federal law would find the provision to be valid and enforceable.  The loan transaction that is evidenced by the Note and this Agreement has been applied for, considered, approved and made, and all necessary loan documents have been accepted by Lender in the State of California,

 

Choice of Venue.  If there is a lawsuit, Grantor agrees upon Lender’s request to submit to the jurisdiction of the courts of Santa Clara County, State of California.

 

No Waiver by Lender.  Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender.  No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right.  A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement.  No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall constitute a waiver of any of Lender’s rights or of any of Grantor’s obligations as to any future transactions.  Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender.

 

Notices.  Any notice required to be given under this Agreement shall be given in writing, and shall be effective when actually delivered, when

 

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actually received by telefacsimile (unless otherwise required by law), when deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Agreement.  Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address.  For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor’s current address.  Unless otherwise provided or required by law, if there is more than one Grantor, any notice given by Lender to any Grantor is deemed to be notice given to all Grantors.

 

Severability.  If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other circumstance.  If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable.  If the offending provision cannot be so modified, it shall be considered deleted from this Agreement.  Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement.

 

Successors and Assigns.   Subject to any limitations stated in this Agreement on transfer of Grantor’s interest, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.  If ownership of the Collateral becomes vested in a person other than Grantor, Lender, without notice to Grantor, may deal with Grantor’s successors with reference to this Agreement and the Indebtedness by way of forbearance or extension without releasing Grantor from the obligations of this Agreement or liability under the Indebtedness.

 

Time is of the Essence.  Time is of the essence in the performance of this Agreement.

 

DEFINITIONS.  The following capitalized words and terms shall have the following meanings when used in this Agreement.  Unless specifically stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America.  Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require.  Words and terms not otherwise defined in this Agreement shall have the meanings attributed to such terms in the Uniform Commercial Code:

 

Agreement.  The word “Agreement” means this Commercial Pledge Agreement, as this Commercial Pledge Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Commercial Pledge Agreement from time to time.

 

Borrower.  The word “Borrower” means GOLDEN RESORTS, INC. and includes all co-signers and co-makers signing the Note.

 

Collateral.  The word “Collateral” means all of Grantor’s right, title and interest in and to all the Collateral as described in the Collateral Description section of this Agreement.

 

Default.  The word “Default” means the Default set forth in this Agreement in the section titled “Default”.

 

Event of Default.  The words “Event of Default” mean any of the events of default set forth in this Agreement in the default section of this Agreement.

 

Grantor. The word “Grantor” means BJ Chicago, LLC.

 

Income and Proceeds.  The words “Income and Proceeds” mean all present and future income, proceeds, earnings, increases, and substitutions from or for the Collateral of every kind and nature, including without limitation all payments, interest, profits, distributions, benefits, rights, options, warrants, dividends, stock dividends, stock splits, stock rights, regulatory dividends, subscriptions, monies, claims for money due and to become due, proceeds of any insurance on the Collateral, shares of stock of different par value or no par value issued in substitution or exchange for shares included in the Collateral, and all other property Grantor is entitled to receive on account of such Collateral, including accounts, documents, instruments, chattel paper, and general intangibles.

 

Indebtedness.  The word “Indebtedness” means the indebtedness evidenced by the Note or Related Documents, including all principal and interest together with all other indebtedness and costs and expenses for which Borrower is responsible under this Agreement or under any of the Related Documents,

 

Lender. The word “Lender” means Heritage Bank of Commerce, its successors and assigns.

 

Note.  The word “Note” means the Note executed by GOLDEN RESORTS, INC. in the principal amount of $2,500,000.00 dated February 9, 2005, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the note or credit agreement.

 

Obligor.  The word “Obligor” means without limitation any and all persons obligated to pay money or to perform some other act under the Collateral.

 

Property.  The word “Property” means all of Grantor’s right, title and interest in and to all the Property as described in the “Collateral Description” section of this Agreement.

 

Related Documents.  The words “Related Documents” mean all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.

 

BORROWER AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE AGREEMENT AND AGREE TO ITS TERMS.  THIS AGREEMENT IS DATED FEBRUARY 9, 2005.

 

THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.

 

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Grantor:

 

 

 

 

 

 

 

 

BJ Chicago, LLC

 

 

 

 

 

 

 

 

GOLDEN RESORTS, INC., Manager of BJ Chicago, LLC

 

 

 

 

 

 

 

 

By:

/s/ SHANN M. BRASSFIELD

 

(Seal)

 

 

 Shann M. Brassfield, President of GOLDEN

 

 

 RESORTS, INC.

 

 

 

 

 

 

 

 

 

THE JACMAR COMPANIES, Manager of BJ Chicago, LLC

 

 

 

 

 

 

 

 

 

By:

/s/ JAMES A. DAL POZZO

 

(Seal)

 

 

 James A. Dal Pozzo, President of THE JACMAR

 

 

 COMPANIES

 

 

 

 

 

Borrower:

 

 

 

 

 

 

 

 

 

 

GOLDEN RESORTS, INC.

 

 

 

 

 

 

By:

/s/ SHANN M. BRASSFIELD

 

(Seal)

 

 

 Shann M. Brassfield, President of GOLDEN

 

 

 RESORTS, INC.

 

 

 

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