EXHIBIT 10.9
U.S. Small-Business Administration
SBA LOAN NUMBER
GP 000 000 0000 PRO
NOTE
Providence, Rhode Island
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(City and State)
$ 350,000 (Date) February 28, 1996
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For value received, the undersigned promises to pay to the order of
HOME LOAN AND INVESTMENT BANK, F.S.B.
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(Payee)
at its office in the city of Providence , State of Rhode Island
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or at holder's option, at such other place as may be designated from time to
time by the holder
Three Hundred Fifty Thousand ($350,000.00) dollars,
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(Write our amount)
with interest on unpaid principal computed from the date of each advance to the
undersigned at the rate of variable percent per annum, payment to be made in
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installments as follows:
SEE EXHIBIT A ATTACHED HERETO
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If this Note contains a fluctuating interest rate, the notice provision is
not a pre-condition for fluctuation (which shall take place regardless of
notice. Payment of any installment of principal or interest owing on this Note
may be made prior to the maturity date thereof without penalty. Borrower shall
provide lender with written notice of intent to prepay part or all of this loan
at least three (3) weeks prior to the anticipated prepayment date. A prepayment
is any payment made ahead of schedule that exceeds twenty (20) percent of the
then outstanding principal balance. If borrower makes a prepayment and fails to
give at least three weeks advance notice of intent to prepay, then,
notwithstanding any other provision to the contrary in this note or other
document, borrower shall be required to pay lender three weeks interest on the
unpaid principal as of the date preceding such prepayment.
Page 1
The term Indebtedness as used herein shall mean the Indebtedness evidenced
by this Note, including principal, interest, and expenses, whether contingent,
now due or hereafter to become due and whether heretofore or contemporaneously
herewith or hereafter contracted. The term "Collateral" as used in this Note
shall mean any funds, guaranties, or other property or rights therein of any
nature whatsoever or the proceeds thereof which may have been, are, or hereafter
may be, hypothecated, directly or indirectly by the undersigned or others, in
connection with, or as security for, the Indebtedness or any part thereof. The
Collateral, and each part thereof, shall secure the Indebtedness and each part
thereof. The covenants and conditions set forth or referred to in any and all
instruments of hypothecation constituting the Collateral are hereby incorporated
in this Note as covenants and conditions of the undersigned with the same force
and effect as though such covenants and conditions were fully set forth herein.
The Indebtedness shall immediately become due and payable, without notice
or demand, upon the appointment of a receiver or liquidator, whether voluntary
or involuntary, for the undersigned or for any of its property, or upon the
filing of a petition by or against the undersigned under the provisions of any
State insolvency law or under the provisions of the Bankruptcy Reform Act of
1978, as amended, or upon the making by the undersigned of an assignment for the
benefit of its creditors. Holder is authorized to declare all or any part of the
Indebtedness immediately due and payable upon the happening of any of the
following events: (1) Failure to pay any part of the Indebtedness when due; (2)
nonperformance by the undersigned of any agreement with, or any condition
imposed by, Holder or Small Business Administration (hereinafter called "SBA"),
with respect to the Indebtedness; (3) Xxxxxx's discovery Of the undersigned's
failure in any application of the undersigned to Holder or SBA to disclose any
fact deemed by Holder to be material or of the making therein or in any of the
said agreements, or in any affidavit or other documents submitted in connection
with said application or the indebtedness, of any misrepresentation by, on
behalf of, or for the benefit of the undersigned; (4) the reorganization (other
than a reorganization pursuant to any of the provisions of the Bankruptcy Reform
Act of 1978, as amended) or merger or consolidation of the undersigned (or the
making of any agreement therefor) without the prior written consent of Holder;
(5) the undersigned's failure duly to account, to Holder's satisfaction, at
such time or times as Holder may require, for any of the Collateral, or proceeds
thereof, coming into the control of the undersigned; or (6) the institution of
any suit affecting the undersigned deemed by Holder to affect adversely its
interest hereunder in the Collateral or otherwise. Holder's failure to exercise
its rights under this paragraph shall not constitute a waiver thereof.
Upon the nonpayment of the Indebtedness, or any part thereof, when due,
whether by acceleration or otherwise. Holder is empowered to sell, assign, and
deliver the whole or any part of the Collateral at public or private sale,
without demand, advertisement or notice of the time or place of sale or of any
adjournment thereof, which are hereby expressly waived. After deducting all
expenses incidental to or arising from such sale or sales, Holder may apply the
residue of the proceeds thereof to the payment of the Indebtedness, as it shall
deem proper, returning the excess, if any, to the undersigned. The undersigned
hereby waives all right of redemption or appraisement whether before or after
sale.
Holder is further empowered to collect or cause to the collected or
otherwise to be converted into money all or any part of the Collateral, by suit
or otherwise, and to surrender, compromise, release, renew, extend, exchange, or
substitute any item of the Collateral in transactions with the undersigned or
any third party, irrespective of any assignment thereof by the undersigned, and
without prior notice to or consent of the undersigned or any assignee. Whenever
any item of the Collateral shall not be paid when due, or otherwise shall be in
default, whether or not the indebtedness, or any part thereof, has become due,
Holder shall have the same rights and powers with respect to such item of the
Collateral as are granted in this paragraph in case of nonpayment of the
Indebtedness, or any part thereof, when due. None of the rights, remedies,
privileges, or powers of Holder expressly provided for herein shall be
exclusive, but each of them shall be cumulative with and in addition to every
other right, remedy, privilege, and power now or hereafter existing in favor of
Holder, whether at law or equity, by statute or otherwise.
The undersigned agrees to take all necessary steps to administer,
supervise, preserve, and protect the Collateral; and regardless of any action
taken by Xxxxxx, there shall be no duty upon Holder in this respect. The
undersigned shall pay all expenses of any nature, whether incurred in or out of
court, and whether incurred before or after this Note shall become due at its
maturity date or otherwise, including but not limited to reasonable attorney's
fees and costs, which Holder may deem necessary or proper in connection with the
satisfaction of the indebtedness or the administration, supervision,
preservation, protection of (including, but not limited to, the maintenance of
adequate insurance) or the realization upon the Collateral Holder is authorized
to pay at any time and from time to time any or all of such expenses add the
amount of such payment to the amount of the Indebtedness, and charge interest
thereon at the rate specified herein with respect to the principal amount of
this Note.
The security rights of Holder and its assigns hereunder shall not be
impaired by Xxxxxx's sale, hypothecation or rehypothecation of any note of the
undersigned or any item of the Collateral, or by any indulgence, including but
not limited to (a) any renewal, extension, or modification which Holder may
grant with respect to the indebtedness or any part thereof, or (b) any
surrender, compromise, release, renewal, extension, exchange, or substitution
which Holder may grant in respect of the Collateral, or (c) any indulgence
granted in respect of any endorser, guarantor, or surety. The purchaser,
assignee, transferee, or pledgee of this Note, the Collateral, and guaranty, and
any other document (or any of them), sold, assigned, transferred, pledged, or
repledged, shall forthwith become vested with and entitled to exercise all the
powers and rights given by this Note and all applications of the undersigned to
Holder or SBA, as if said purchaser, assignee, transferee, or pledgee were
originally named as Payee in this Note and in said application or applications.
Page 2
This promissory note is given to secure a loan which SBA is making or in
which it is participating and, pursuant to Part 101 of the Rules and Regulations
of SBA (13 C.F.R. 101.1(d)), this instrument is to be construed and (when SBA is
the Holder or a party in interest) enforced in accordance with applicable
Federal law.
CAFE LA FRANCE, INC.
(corporate seal) By: /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx
President
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Note--Corporate applicants must execute Note, in corporate name, by duly
authorized officer, and seal must the affixed and duly attested: partnership
applicants must execute Note in firm name, together with signature of a general
partner.
Page 3
U.S. GOVERNMENT PRINTING OFFICE: 1993 0-348-951
Exhibit A
1. NOTE PAYABLE: Ten (10) years from date of Note, with interest at the
initial rate of eleven and one-quarter percent (11.25%) in monthly
installments, including principal and interest, each in the amount of
Four Thousand Eight Hundred and Seventy-One Dollars ($4,871.00),
payable monthly, beginning on the first day of the second month
following the date of the note and the balance of principal and
interest payable at maturity. With the further provision that each said
monthly installment shall be applied first to interest accrued to the
date of receipt of said installment, and the balance, if any, to
principal. Upon each interest rate adjustment the monthly installment
of principal and interest shall be adjusted to amortize the loan over
the originally stated maturity.
2. This is a variable interest rate loan in which the interest rate will
fluctuate in accordance with the prime rate published in the Wall
Street Journal. Interest shall accrue on a 365 per annum basis for the
actual number of days elapsed. The prime rate published as of January
11, 1996 in that publication was eight and five percent (8.50%). The
interest rate (spread) to be added to the prime rate on the beginning
of each adjustment period will be two and three quarters percent
(2.75%).
3. Quarterly Fluctuations: Shall be for three (3) full calendar months.
Each adjustment period occurring on the first business day of January,
April, July and October.
4. The interest rate on this Note shall increase or decrease by adding the
interest rate spread on the prime rate as of the beginning of each
adjustment period.
Holder should give written notice to the Undersigned of each increase
or decrease in the interest rate within thirty (30) days after the
effective date of each rate adjustment; however, the fluctuation of the
interest rate is not contingent on whether the notice is given.
5. Borrower shall provide Lender with written notice of intent to prepay
part or all of this loan at least three (3) weeks prior to the
anticipated prepayment date. A prepayment shall be defined as any
payment made ahead of schedule that exceeds twenty (20%) percent of
the then outstanding balance.
6. If the Borrower is in default on payments when SBA purchases its
guaranteed portion, the rate of interest on the unguaranteed portion
shall become fixed at the rate in effect as of the initial date of
default. If the Borrower is not in default on payments when SBA
purchases its guaranteed portion, the rate of interest on the
unguaranteed portion shall be fixed at the rate in effect as of the
initial date of purchase by SBA.
Provided, however, in no event shall the amount of interest payment
hereunder, together with all amounts reserved, charged, or taken by the
Lender/SBA as compensation for fees, services, expenses incidental in
the making, negotiating or collection of the loan evidenced hereby
exceed the maximum rate of interest on, the unpaid principal balance
hereof allowable by applicable law. In the event that any sum is
collected, said sum shall be applied to reduce the principal in an
inverse order of maturity.
