EXHIBIT (10)(b)
LINE OF CREDIT NOTE
$5,000,000.00 Nashville, Tennessee as of May 12, 2003
FOR VALUE RECEIVED, X. XXXXXXXXX'X CORPORATION and X. XXXXXXXXX'X
RESTAURANTS, INC., both Tennessee corporations (collectively, the "Maker"),
jointly and severally promise to pay to the order of BANK OF AMERICA, N.A.
("Payee" or "Bank of America"), the sum of Five Million and No/100 Dollars
($5,000,000.00), or as much thereof as may be outstanding from time to time,
together with interest thereon as set forth below. This Note is made pursuant to
the terms of that certain Loan Agreement dated as of May 12, 2003 (the "Loan
Agreement"). Capitalized terms not defined herein shall have the meanings set
forth in the Loan Agreement.
Maker may borrow, repay and reborrow at any time, up to a maximum
aggregate amount outstanding at any one time equal to the principal amount of
this Note, provided that Maker is not in default, subject to applicable grace
and cure periods, if any, set forth in the Loan Agreement, under any provision
of this Note, any other documents executed in connection with this Note, or any
other note or other Loan Documents now or hereafter executed in connection with
any other obligation of Maker to Payee, and provided that the borrowings
hereunder do not exceed the limitation on borrowings by Maker set forth in
Section 2.(e)(ii) of the Loan Agreement.
From the date hereof until the stated maturity of this Note, interest
shall accrue at the rate set forth in the Loan Agreement. From the date hereof
until the stated maturity of this Note, an unused commitment fee as determined
by the provisions of the Loan Agreement shall be paid quarterly in arrears.
Interest in arrears shall be due and payable on the first (1st) day of
each month beginning on June 1, 2003, and continuing on the same day of each
consecutive month thereafter until the stated maturity of this Note. All
remaining principal and interest shall become due on April 30, 2006 (the
"Maturity Date").
Xxxxx has elected to authorize Bank of America to effect payment of
sums due under this Note by means of debiting Maker's account number 112638499
ABA routing # 0064002. This authorization shall not affect the obligation of
Maker to pay such sums when due, without notice, if there are insufficient funds
in such account to make such payment in full on the due date thereof, or if Bank
of America fails to debit the account.
Subject to the provisions of the Loan Agreement, Maker has the option
to convert the $5,000,000.00 Line of Credit Loan evidenced by this note to a
term loan as more particularly set forth in the Loan Agreement.
Interest hereunder shall be calculated based upon a 360 day year and
actual days elapsed. The interest rate required hereby shall not exceed the
maximum rate permissible under applicable law, and any amounts paid in excess of
such rate shall be applied to reduce the principal amount hereof or shall be
refunded to Maker, at the option of the holder of this Note.
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All amounts due under this Note are payable at par in lawful money of
the United States of America, at the principal place of business of Payee in
Nashville, Tennessee, or at such other address as the Payee or other holder
hereof (herein "Holder") may direct.
Any payment not made within fifteen (15) days of its due date will be
subject to assessment of a late charge equal to five percent (5%) of such
payment. Xxxxxx's right to impose a late charge does not evidence a grace period
for the making of payments hereunder.
The occurrence of a Default under the Loan Agreement shall constitute
an event of default under this Note.
Upon the occurrence of an event of default, as defined above, Holder
may, at its option and without notice, terminate any obligation to advance funds
under this Note, declare all principal and interest provided for under this
Note, and any other obligations of Maker to Holder, to be presently due and
payable, and Holder may enforce any remedies available to Holder under any
documents securing or evidencing debts of Maker to Holder. Holder may waive any
default before or after it occurs and may restore this Note in full effect
without impairing the right to declare it due for a subsequent default, this
right being a continuing one. Upon default, at Xxxxxx's election, the remaining
unpaid principal balance of the indebtedness evidenced hereby and all expenses
due Holder shall bear interest at the Default Rate as said term is defined in
the Loan Agreement.
All amounts received for payment of this Note shall be first applied to
any expenses due Holder under this Note or under any other documents evidencing
or securing obligations of Maker to Holder, then to accrued interest, and
finally to the reduction of principal. Prepayment of principal or accrued
interest may be made, in whole or in part, at any time without penalty. Any
prepayment(s) shall reduce the final payment(s) and shall not reduce or defer
installments next due.
This Note may be freely transferred by Holder.
Maker and all sureties, guarantors, endorsers and other parties to this
instrument hereby consent to any and all renewals, waivers, modifications, or
extensions of time (of any duration) that may be granted by Holder with respect
to this Note and severally waive demand, presentment, protest, notice of
dishonor, and all other notices that might otherwise be required by law. All
parties hereto waive the defense of impairment of collateral and all other
defenses of suretyship.
Maker and all sureties, guarantors, endorsers and other parties hereto
agree to pay reasonable attorneys' fees and all court and other costs that
Holder may incur in the course of efforts to collect the debt evidenced hereby
or to protect Xxxxxx's interest in any collateral securing the same.
The validity and construction of this Note shall be determined
according to the laws of Tennessee applicable to contracts executed and
performed within that state. If any provision of this Note should for any reason
be invalid or unenforceable, the remaining provisions hereof shall remain in
full effect.
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The provisions of this Note may be amended or waived only by instrument
in writing signed by the Holder and Maker and attached to this Note.
Any controversy or claim between or among the parties to this Note or
any related loan or collateral agreements or instruments (collectively, "Loan
Documents"), including any claim based on or arising from an alleged tort, shall
be determined by binding arbitration in accordance with the Federal Arbitration
Act (or if not applicable, the applicable state law), the Rules of Practice and
Procedure for the arbitration of commercial disputes of Judicial Arbitration and
Mediation Services, Inc. (J.A.M.S.), and the "special rules" set forth below. In
the event of any inconsistency, the special rules shall control. Judgment upon
any arbitration award may be entered in any court having jurisdiction. Any party
to the Loan Documents may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this
agreement applies in any court having jurisdiction over such action.
The following "Special Rules" shall apply. The arbitration shall be
conducted in Nashville, Tennessee and administered by J.A.M.S. who will appoint
an arbitrator; if J.A.M.S. is unable or legally precluded from administering the
arbitration, then the American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of the demand for
arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days.
Nothing in the foregoing arbitration shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in the Loan Documents; or (ii) be a waiver by Bank of
America of the protection afforded to it by 12 U.S.C. Sec. 91 or any
substantially equivalent state law; or (iii) limit the rights of Bank of America
under the Loan Documents (a) to exercise self help remedies such as (but not
limited to) set-off, or (b) to foreclose against any real or personal property
collateral, or (c) to obtain from a court provisional or ancillary remedies such
as (but not limited to) injunctive relief, possession of collateral or the
appointment of a receiver. Bank of America may exercise such self help rights,
foreclose upon such property, or obtain such provisional or ancillary remedies
before, during or after the pendency of any arbitration proceeding brought
pursuant to the Loan Documents. At Bank of America's option, foreclosure under a
deed of trust or mortgage may be accomplished by any of the following: the
exercise of a power of sale under the deed of trust or mortgage, or by judicial
sale under the deed of trust or mortgage, or by judicial foreclosure. Neither
this exercise or self help remedies nor the institution or maintenance of an
action for foreclosure or provisional or ancillary remedies shall constitute a
waiver of the right of any party, including the claimant in any such action, to
arbitrate the merits of the controversy or claim occasioning resort to such
remedies.
THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
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Words used herein indicating gender or number shall be read as context
may require.
X. XXXXXXXXX'X CORPORATION X. XXXXXXXXX'X RESTAURANTS, INC.
By: X. Xxxxxxx Xxxxx By: X. Xxxxxxx Xxxxx
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Title: Vice President and Title: Vice President
Chief Financial Officer --------------------
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