EXHIBIT 10.33.5
Borrower: SILVER DINER, INC., a Delaware corporation (the "Borrower")
-----------------------------------------------------------
Account Number: 9560083952 Note Number: 00006
Address: 11806 Rockville Pike Xxxxxxxxxx County, Maryland
Rockville, MD. 20852 Date: January 15, 2002
BB&T
PROMISSORY NOTE
THE UNDERSIGNED REPRESENTS THAT THE LOAN EVIDENCED HEREBY IS BEING OBTAINED
FOR BUSINESS/COMMERCIAL OR AGRICULTURAL PURPOSES. For value received, the
undersigned, jointly and severally, if more than one, promises to pay to BRANCH
BANKING AND TRUST COMPANY, a North Carolina banking corporation (the "Bank"), or
order, at any of Bank's offices in the above referenced city (or such other
place or places that may be hereafter designated by Bank), the sum of Five
Hundred Thousand Dollars ($500,000.00), or so much thereof as shall be advanced
hereunder, together with interest thereon, in immediately available coin or
currency of the United States of America. The unpaid principal balance of this
Note outstanding from time to time shall bear interest at the variable rate
equal to the Prime Rate (hereinafter defined) plus one-half of one percent
(.50%) per annum to be adjusted as and when such Prime Rate changes. The Prime
Rate is equal to the rate reported in The Wall Street Journal in its "Money
Rates" column as the "Prime Rate" and, if more than one rate or a range of rates
are reported as the "Prime Rate," the highest such rate, changing as and when
such rate shall change. If The Wall Street Journal shall cease to publish the
"Prime Rate," the "Prime Rate" shall mean that rate announced from time to time
by the Bank as its Commercial Base Rate of Interest. The Borrower acknowledges
and agrees that the "Prime Rate" and the Commercial Base Rate of Interest are
references used by the Bank in determining interest rates on certain loans and
are not intended to be the lowest rate of interest charged on any extension of
credit to any customer.
Borrower shall pay the principal and interest hereunder as follows:
This Note shall be payable interest only, monthly in arrears, on the first
day of February 2002 and on the first day of each calendar month thereafter
through December 1, 2003. Commencing on January 1, 2004 and on the first day of
each subsequent month through December 1, 2009, Borrower shall pay an
installment of principal equal to 1/72 of the principal balance of the Year 2002
Note as of December 1, 2003, plus accrued interest. All principal, interest and
other amounts due under the Year 2002 Note shall be due and payable in full on
December 1, 2009.
In addition, the undersigned promises to pay to Bank, or order, a late fee
in the amount of five percent (5%) of any installment past due for ten (10) or
more days. When any installment payment is past due for ten (10) or more days,
subsequent payments shall first be applied to the
-10-
past due balance. All interest shall be computed and charged for the actual
number of days elapsed on the basis of a year consisting of three hundred sixty
(360) days.
This Note is given by the undersigned in connection with the following
agreements between the undersigned and the Bank: Amended and Restated Loan
Agreement dated May 10, 2000 between Bank, the Borrower and the other Borrower
Parties (defined therein) (the "Loan Agreement"); Security Agreement dated as of
even date with the Loan Agreement conveying a security interest in favor of Bank
given by Borrower (the "Security Agreement"), Assignments of Leasehold as
Collateral dated various dates, from Borrower to Bank assigning to Bank
Borrower's interests as tenant under various leases (the "Lease Assignments");
and Financing Statements.
All of the terms, conditions and covenants of the above described
agreements (collectively, the "Agreements") are expressly made a part of this
Note by reference in the same manner and with the same effect as if set forth
herein at length and any holder of this Note is entitled to the benefits of and
remedies provided in the Agreements and any other agreements by and between the
undersigned and the Bank.
No delay or omission on the part of the holder in exercising any right
hereunder shall operate as a waiver of such right or of any other right of such
holder, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or of any other right on any future occasion. Every
one of the undersigned and every endorser or guarantor of this Note regardless
of the time, order or place of signing waives presentment, demand, protest and
notices of every kind and assents to any one or more extensions or postponements
of the time of payment or any other indulgences, to any substitutions, exchanges
or releases of collateral if at any time there be available to the holder
collateral for this Note, and to the additions or releases of any other parties
or persons primarily or secondarily liable.
If an event of default under the Loan Agreement shall occur, then such
event shall be a default hereunder and the Bank may, by notice to Borrower,
declare this Note, all interest thereon and principal and other amounts due
thereunder and all other amounts payable under the Agreements, to be forthwith
due and payable, whereupon this Note, all such interest and principal and other
amounts due thereunder and all such other Obligations shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by Borrower.
From and after any event of default hereunder, at the option of the Bank,
interest shall accrue on the sum of the principal balance and accrued interest
then outstanding at the variable rate equal to the Prime Rate plus three percent
(3%) per annum ("Default Rate"), provided that such rate shall not exceed at any
time the highest rate of interest permitted by the laws of the State of
Maryland; and further provided that such rate shall apply after judgment. In the
event of any default, the then remaining unpaid principal amount and accrued but
unpaid interest then outstanding shall bear interest at the Default Rate called
for hereunder until such principal and interest have been paid in full. In
addition, upon default, the Bank may pursue its full legal remedies at law or
equity.
-11-
Bank shall not be obligated to accept any check, money order, or other
payment instrument marked "payment in full" on any disputed amount due
hereunder, and Bank expressly reserves the right to reject all such payment
instruments. Borrower agrees that tender of its check or other payment
instrument so marked will not satisfy or discharge its obligation under this
Note, disputed or otherwise, even if such check or payment instrument is
inadvertently processed by Bank unless in fact such payment is in fact
sufficient to pay the amount due hereunder.
If this Note is placed with an attorney for collection, the undersigned
agrees to pay, in addition to principal and interest, all costs of collection,
including but not limited to reasonable attorneys' fees. All obligations of the
undersigned and of any Obligor shall bind his heirs, executors, administrators,
successors, and/or assigns. Use of the masculine pronoun herein shall include
the feminine and the neuter, and also the plural. If more than one party shall
execute this Note, the term "undersigned" as used herein shall mean all the
parties signing this Note and each of them, and all such parties shall be
jointly and severally obligated hereunder. Wherever possible, each provision of
this Note shall be interpreted in such a manner to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or
invalid under such law, such provision shall be ineffective but only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Note. All of the undersigned
hereby waive all exemptions and homestead laws.
The proceeds of the loan evidenced by this Note may be paid to any one or
more of the undersigned. From time to time the maturity date of this Note may be
extended, or this Note may be renewed in whole or in part, or a new note of
different form may be substituted for this Note, or the rate of interest may be
modified, or changes may be made in consideration of loan extensions, and the
holder hereof, from time to time may waive or surrender, either in whole or in
part any rights, guaranties, security interest or liens, given for the benefit
of the holder in connection with the payment and the securing the payment of
this Note; but no such occurrence shall in any manner affect, limit, modify, or
otherwise impair any rights, guaranties or security of the holder not
specifically waived, released, or surrendered in writing, nor shall the
undersigned r maker, or any guarantor, endorser, or any person who is or might
be liable hereon, either primarily or contingently, be released from such event.
The holder hereof, from time to time, shall have the unlimited right to release
any person who might be liable hereon, and such release shall not affect or
discharge the liability of any other person who is or might be liable hereon. No
waivers and modifications shall be valid unless in writing and signed by the
Bank. The Bank may, at its option, charge any fees for the modification,
renewal, extension, or amendment of any of the terms of the Note permitted by
applicable law. In case of a conflict between the terms of this Note and the
Loan Agreement, the priority of controlling terms shall be first this Note, then
the Loan Agreement This Note shall be governed by and construed in accordance
with the laws of the State of Maryland; provided however that Bank's remedies
against any Collateral located in any other jurisdiction shall be interpreted,
construed, applied and enforced according to and governed by the laws of the
jurisdiction in which such property is located, and the Borrower hereby submits
to the jurisdiction of any court of competent jurisdiction located therein in
connection with any foreclosure or enforcement proceeding undertaken in
connection with the Borrower's property.
Sharing of Information with Affiliates: Applicable law permits us to share
--------------------------------------
information with third parties about our credit and account history with you.
Applicable law also permits us
-12-
to share additional information about you and your accounts with companies
related to the Bank by common ownership or control ("affiliates"). We provide
this additional information to our affiliates so that you may receive special
offers and promotions from our affiliates. You may request that we not furnish
this additional information (other than credit and account history) to our
affiliates by writing to Branch Banking and Trust Company, Client Services
Administration, X.X. Xxx 0000, Xxxxxx, Xxxxx Xxxxxxxx 00000-0000. Please include
your name, address, telephone number, account number (if known), and social
security (tax identification) number. Due to marketing programs already in
progress, please allow a reasonable period of time for your request to take
effect. In order for us to communicate important loan or deposit account
information, we will continue to notify you through occasional statement inserts
or other customer service mailings. Please be aware that state and federal laws
impose certain mandatory disclosures of customer information by financial
institutions. We must comply with laws that require mandatory production or
disclosure.
SIGNATURES CONTINUED ON NEXT PAGE
-13-
SIGNATURE PAGES TO PROMISSORY NOTE
Borrower: SILVER DINER, INC., a Delaware corporation
------------------------------------------
Account Number: 9560083952 Note Number: 00006
Note Amount: $500,000.00 Date: January 15, 2002
BB&T
IN WITNESS executed undersigned, on the day and year first written above, has
caused this note to be executed under seal.
ATTEST: ______________________ Silver Diner, Inc., a Delaware corporation
Title:________________________ By: ________________________________________
XXXXXX X. XXXXXX
Title: President
[SEAL]
-14-
