EXHIBIT 10
LINE OF CREDIT AGREEMENT
AGREEMENT made effective the 1st day of September,
2000, between Jacksonville Restaurant Acquisition Corp.
("Lender"), 0000 Xxxxxxxx Xxx Xxxxx, Xxxxxxxxxxxx, XX
00000. and Cucos Inc. ("Borrower"), 000 Xxxxxxxx Xxxx.,
Xxxxx 000, Xxxxxxxx, XX 00000.
RECITALS
I. Borrower is in the business of owning and developing
restaurant franchises using the "Cucos" name and franchise
system.
II. Borrower has to date borrowed funds from Lender for
working capital.
III. Borrower desires to borrow funds for working capital.
IV. Lender is willing, and has access to financial
resources, to lend Borrower sufficient funds for working
capital.
TERMS AND CONDITIONS
1. Definitions.
1.1. "Lender" means Jacksonville Restaurant Acquisition
Corp.
1.2. "Borrower" means Cucos Inc.
1.3. "Interest Rate" means three percentage points above the
prime rate of interest charged by Xxxxx Fargo Bank to its
preferred customers, as adjusted pursuant to this Agreement.
1.4. "Loan" means one or more loan advances made by Lender
to Borrower pursuant to this Agreement, including the "Prior
Advance" as hereinafter defined.
1.5. "Note" means the Promissory Note to be issued by
Borrower to Lender pursuant to this Agreement.
2. Establishment of Line of Credit.
2.1. Borrower agrees to the establishment of a corporate
line of credit ("LOC") in Borrower's name with Lender, to be
secured by all assets of Borrower pursuant to this
Agreement, under which loan advances may from time to time
be extended to Borrower on the terms and conditions set
forth herein.
2.2. The maximum credit limit shall be Five Million
($5,000,000.00) Dollars.
3. The Loan.
3.1. Loan Advances. Loan advances within the maximum credit
limit for the LOC shall be made by Lender by check or wire
transfer to Borrower's designated depository or other payee
for the amount of any loan advance requested by Borrower
under the LOC. Borrower agrees that Lender is not obligated
to make advances that will increase the amounts owing under
the LOC above the maximum credit limit, or to make any
further advances, regardless of the amounts owing under the
LOC, at any time when there has been a default hereunder
that has not been cured to the satisfaction of Lender.
3.2. Prior Advance. As of the effective date of this
Agreement, Lender has previously advanced to Borrower the
sum of One Hundred Twenty Thousand ($120,000.00) Dollars
("Prior Advance").
3.3. Note. Upon execution of this Agreement, Borrower will
execute and deliver a Note to Lender in a form approved by
Lender.
3.4. Term. The term of the loan will be ten (10) years
commencing January 1, 2001 and terminating December 1, 2011.
3.5. Interest on Prior Advance. Interest on the Prior
Advance will accrue from August 10, 2000.
3.6. Interest on Loan Advances. Interest on Loan Advances,
other than the Prior Advance, shall accrue from the date
each advance is made by Lender.
3.7. Interest Rate. The initial interest rate shall be
determined as of August 20, 2000. Commencing December 1,
2001, the Interest Rate shall be adjusted annually on
December 1 for the installments due commencing the following
January 1. The Interest Rate used shall be determined as of
close of business on November 30 of said year, or if the
last business day is earlier than November 30, then on said
last business day. Interest shall be calculated on the
basis of a 360-day year, counting the actual number of days
elapsed.
3.8. Principal and Interest Payments. Commencing January 1,
2001, the principal of the loan shall be repaid in one
hundred twenty (120) consecutive monthly installments
payable on the first day of each month. The amount of each
principal installment shall be the amount of principal
outstanding as of the date of payment, multiplied by a
fraction, the numerator of which is one and the denominator
of which is the number of months remaining in the term,
including the month in which the payment is due. In
addition to the aforesaid principal payment, each monthly
payment shall include interest computed on the average daily
principal balance outstanding in the month prior to the
payment due date at the Interest Rate then in effect, taking
into account all advances received and payments made during
said prior month.
3.9. Alternative Payment Method. For purposes of this 3.9,
the term "Lender's Stock" shall mean Lender's percentage
ownership of the Borrower's stock voting generally in the
election of directors (including convertible preferred
stock) and owned as of the date of this Agreement plus
shares acquired in payment pursuant to this Agreement. In
lieu of payment in cash pursuant to 3.8, Lender may at its
option elect that payment be made in capital stock of
Borrower under the following conditions:
3.9.1. Lender's Stock has fallen below 52%; and
3.9.2. Lender shall have notified Borrower in writing of
such election on or before the 25th day of the month
preceding the due date of the payment for which the election
is made; and
3.9.3. If the amount of stock in lieu of cash would
result in Lender's Stock exceeding 52%, Borrower shall pay
partly in stock to bring Lender's Stock to 52% and the
balance in cash; and
3.9.4. The stock shall be valued, for purposes of
payment, at One ($1.00) Dollar per share through December
31, 2001. Thereafter, commencing January 1, 2002, the stock
shall be valued at the average daily closing price for the
ninety (90) days prior to the applicable payment.
3.10. Prepayment. Borrower, without penalty or premium,
may prepay the principal of the loan, in whole or in part,
at any time and from time to time, in multiples of Ten
Thousand ($10,000.00) Dollars. All such partial prepayments
shall be applied against the installments of principal
required herein in the inverse order of maturity. In the
event Lender's percentage ownership of the Borrower's common
stock falls below 52%, Lender may upon ten (10) days written
notice to Borrower demand that Borrower prepay the Loan by
issuing to Lender sufficient shares of common stock in
Borrower, valued pursuant to Article 3, to bring the
percentage ownership of the Borrower's common stock to 52%.
3.11. Payment to Lender. All sums payable to Lender
shall be paid directly to Lender in immediately available
funds. Lender shall send Borrower monthly statements of all
amounts due, which statements shall be considered correct
and conclusively binding on Borrower unless Borrower
notifies Lender to the contrary within sixty (60) days of
its receipt of any statement that it deems to be incorrect.
4. Condition Precedent. The obligation of Lender to make
the loan is subject to the condition precedent that Borrower shall have
delivered to Lender prior to disbursement of the first loan
advance (the "Closing") the following:
4.1. The Note;
4.2. The Financing Statements (Form UCC-1) required by
Section 5;
4.3. A certified, as of the date of Closing, copy of
resolutions of Borrower's Board of Directors authorizing the
execution, delivery, and performance of this Agreement, the
Note, , and each other document to be delivered pursuant
hereto;
4.4. Prior to all loan advances, satisfactory proof as to
the prospective use of the funds to be advanced, that same
are and will be used for loan purposes. Lender reserves the
right to deny any request for funds if Lender is not
satisfied with the proposed application of funds, even if
for loan purposes, or if Lender deems itself insecure if
said requested advance is made;
4.5. Simultaneously with each loan advance being made,
payment to Lender of a loan origination fee equal to two
(2%) percent of the amount of the advance. Payment, at
Lender's discretion, will be by offset against the loan
advance or by Borrower issuing to Lender common shares of
stock in Borrower for each dollar advanced, pursuant to the
formula provided in Article 3.
5. Collateral Security.
5.1. The property in which a security interest is granted
pursuant to the provisions of this section is collectively
called the "collateral." The collateral shall stand as one
general, continuing, collateral security for all obligations
and may be retained by Lender until all obligations have
been satisfied in full.
5.2. As further security for the prompt satisfaction of all
obligations arising under this Agreement, Borrower assigns
to Lender all of Borrower's right, title, and interest in
and to, and grants Lender the lien on and a security
interest in, all of the following, wherever located, whether
now owned or hereafter acquired, together with all
replacements and proceeds (including, but without
limitation, insurance proceeds):
5.2.1. Accounts;
5.2.2. Chattel paper;
5.2.3. Contracts;
5.2.4. Contract rights;
5.2.5. Documents;
5.2.6. Equipment
5.2.7. Fixtures
5.2.8. General intangibles
5.2.9. Instruments
5.2.10. Inventory
5.2.11. All records pertaining to any other collateral.
5.3. Priority of Liens. The above-stated liens shall be
first and prior liens except for permitted liens, which are
defined to include only liens in favor of Amresco and
Lender.
5.4. Financing Statements.
5.4.1. Borrower will:
5.4.1.1. Join with Lender in executing such financing
statements (including amendments and continuation statements) in
form satisfactory to Lender, as Lender may from time to time specify;
5.4.1.2. Pay to or reimburse Lender for all costs and taxes
of filing or recording the statements in such public offices
as Lender may designate; and
5.4.1.3. Take such other steps as Lender may direct,
including the noting of Lender's lien on the collateral and
on any certificates of title therefor, to perfect Lender's
interest in the collateral.
5.4.2. In addition to the foregoing, and not in
limitation thereof:
5.4.3. A photocopy or other reproduction of this
Agreement shall be sufficient as a financing statement and
may be filed in any appropriate office thereof; and
5.4.4. To the extent lawful, Borrower appoints Lender as
its attorney-in-fact (without requiring Lender to act as
such) to execute any financing statement in the name of
Borrower, and to perform all other acts that Lender deems
appropriate to preserve and continue its security interest
in, and to protect and preserve, the collateral.
6. Representations and Warranties.
To induce Lender to enter into this Agreement, Borrower
represents and warrants to Lender as follows, all of which
representations and warranties shall survive until all obligations are
satisfied in full:
6.1. Except for non-filing of 1998 and 1999 tax returns, and
payment of taxes due thereon, Borrower is a corporation duly
organized and validly existing, and in good standing, under
the laws of the State of Louisiana; Borrower has the lawful
power to own its properties and to engage in the business it
conducts, and is qualified and in good standing as a foreign
corporation in the jurisdictions wherein the nature of the
business transacted by it or property owned by it makes such
qualification necessary;
6.2. Except for its loan with Amresco, Borrower is not in
default with respect to any of its existing indebtedness for
borrowed money, and the making and performance of this
Agreement and the Note will not immediately or with the
passage of time, or the giving of notice, or both:
6.2.1. Violate the charter or bylaw provisions of
Borrower, or violate any laws or result in a default under
any contract, agreement, or agreement to which Borrower is a
party to by which Borrower or its property is bound;
6.2.2. Result in the creation or imposition of any
security interest in, or lien or encumbrance on, any of the
assets of Borrower, except in favor of Lender, other than
Borrower's agreements with Amresco;
6.3. Borrower has the power and authority to enter into and
perform this Agreement and the Note, and to incur such
obligations, and has taken all corporate action necessary to
authorize the execution, delivery, and performance of this
Agreement and the Note;
6.4. This Agreement isand the Note when delivered will be,
valid, binding and enforceable in accordance with their
respective terms;
6.5. There is no pending order, notice, claim, litigation,
proceeding, or investigation against or affecting Borrower,
whether or not covered by insurance, that would materially
and adversely affect the business or prospects of Borrower
if adversely determined;
6.6. Borrower has good and marketable title to all of its
assets, which are not subject to any security interest,
encumbrance, lien or claim of any third person, except for
permitted liens;
6.7. Except as set forth in 6.1 of this Agreement, Borrower
has filed all federal, state and local tax returns and other
reports it is required by law to file prior to the effective
date hereof and that are material to the conduct of its
business; has paid or caused to be paid all taxes,
assessments, and other governmental charges that are due and
payable prior to the effective date thereof; and has made
adequate provision for the payment of such taxes,
assessments, or other charges accruing but not yet payable;
and Borrower has no knowledge of any deficiency or
additional assessment in a materially important amount in
connection with any taxes, assessments, or charges, not
provided for on its books;
6.8. No representation or warranty by Borrower contained
herein or in any certificate or other document furnished by
Borrower pursuant to this Agreement contains any untrue
statement of material fact or omits to state a material fact
necessary to make such representation or warranty not
misleading in light of circumstances under which it was made
6.9. Except for the Prior Advance, a secured loan from
Amresco, which loan shall be the only permitted lien,
franchise taxes of approximately $22,000.00 for 1998 and
1999, and trade creditors for approximately $800,000.00,
Borrower has no indebtedness.
6.10. Borrower is not a party to any collective
bargaining agreement
7. Borrower's Covenants.
Borrower covenants and agrees with Lender that, so
long as any of its obligations arising under this Agreement remain
unsatisfied, Borrower will comply with the following covenants:
7.1. Borrower will use the proceeds of the loan only for
working capital, payment of debt and payables, refurbishing
units, establishing new units, and future acquisitions, and
will furnish Lender with such evidence as Lender may
reasonably require with respect to such use.
7.2. Borrower will furnish Lender within one hundred twenty
(120) days after the close of Borrower's fiscal year
Borrower's income statement and balance sheet, certified by
Borrower's accountant to have been prepared in accordance
with generally accepted accounting principles consistently
applied;
7.3. Promptly after the sending or making available or
filing of the same, copies of all reports, proxy statements,
and financial statements that Borrower sends or makes
available to its shareholders and all registration
statements and reports that Borrower files with the
Securities and Exchange Commission;
7.4. Borrower will maintain, or cause to be maintained,
public liability insurance and fire and extended coverage
insurance on all assets owned by it, all in such form and
amounts as are consistent with industry practices and with
such insurers as may be satisfactory to Lender. Such
policies shall contain a provision whereby they cannot be
cancelled except after 30 days' written notice to Lender.
Borrower will furnish to Lender such evidence of insurance
as Lender may require. Borrower agrees that, in the event
it fails to pay or cause to be paid the premium on any such
insurance, Lender may do so and on demand be reimbursed
therefore by Borrower. Borrower assigns to Lender any
returned or unearned premiums that may be due Borrower on
cancellation of any such policies for any reason whatsoever
and directs the insureds to pay Lender any amounts so due.
Lender is hereby appointed Borrower's attorney-in-fact
(without requiring Lender to act as such) to endorse any
check that may be payable to Borrower to collect such
returned or unearned premiums or the proceeds of such
insurance, and any amount so collected may be applied by
Lender toward the satisfaction of any of the obligation.
7.5. Borrower will pay or cause to be paid when due
all taxes, assessments, and charges or levies imposed on it or
on any of its property that it is required to withhold and
pay over, except when contested in good faith by appropriate
proceedings, with adequate reserves therefore having been
set aside on its books But Borrower shall pay or cause to
be paid all such taxes, assessments, charges or levies
promptly when foreclosure on any lien that has attached (or
security therefore) appears imminent.
7.6. Borrower, within a reasonable time after written
request therefor, will make available for inspection by
authorized representatives of Lender any of its books and
records, and will furnish Lender any information regarding
its business affairs and financial condition;
7.7. Borrower will take all necessary steps to preserve its
corporate existence and franchises and comply with all
present and future laws applicable to it in the operation of
its business and all material agreements to which it is
subject;
7.8. Borrower will give immediate notice to Lender of any
litigation proceeding in which it is a party and which might
materially and adversely affect its operations, financial
condition, property or business;
7.9. Within thirty (30) days after Lender's request,
Borrower will furnish Lender with copies of federal income
tax returns filed by Borrower;
7.10. Except for existing accounts payable, Borrower
will pay when due, or within applicable grace periods, all
indebtedness due third persons, except when the amount is
being contested in good faith by appropriate proceedings and
with adequate reserves therefor being set aside on the books
of Borrower. If Borrower defaults in the payment of any
principal, or installment thereof, or interest on, any such
indebtedness, Lender shall have the right, in its
discretion, to pay such interest or principal for the
account of Borrower and be reimbursed by Borrower on demand;
7.11. Borrower will notify Lender immediately if it
becomes aware of the occurrence of any event of default or
of any fact, condition, or event that, with the giving of
notice or passage of time, or both, could become an event of
default, or of the failure of Borrower to observe any of its
undertakings under this Agreement;
7.12. Borrower will not change its name, enter into any
merger, consolidation, reorganization or recapitalization,
or reclassify its capital stock, except as otherwise
provided herein, or except for an acquisition pursuant to
which Borrower changes its name;
7.13. Borrower will not sell, transfer, lease, or
otherwise dispose of all, or any material part, of its
assets, except in the ordinary course of business;
7.14. Borrower will not mortgage, pledge, grant, or
promote to exist a security interest in or lien on any of
its assets of any kind, now owned or hereafter acquired,
except for permitted liens;
7.15. Borrower will not become liable, directly or
indirectly, as guarantor or otherwise, for any obligation of
any other person, except for the endorsement of commercial
paper for deposit or collection in the ordinary course of
business;
7.16. Borrower will not incur, create, assume, or permit
to exist any indebtedness except:
7.16.1. The loan;
7.16.2. Trade indebtedness incurred in the ordinary course
of business;
7.16.3. Indebtedness secured by permitted liens
7.17. Borrower will not declare or pay any dividends or
make any other payment or distribution on account of its
capital stock;
7.18. Borrower will not form any subsidiary or make any
investment in, or make any loan in the nature of an
investment to, a person;
7.19. Borrower will not make any loan or advance to any
officer, shareholder, director, or employee of Borrower
except temporary advances in the ordinary course of
business, nor pay salary to executive and management
personnel aggregating more than Five Hundred Thousand
($500,000.00) Dollars per year;
7.20. Borrower will not prepay any subordinated
indebtedness, indebtedness for borrowed money, or
indebtedness secured by any of its assets, except the
obligations due under this Agreement or to Amresco, or enter
into or modify any agreement, except with Amresco, as a
result of which the terms of payment of any of the foregoing
indebtedness are waived or modified;
8. Default.
8.1. Events of Default. The occurrence of any one or more
of the following events shall constitute an event of default
under this Agreement:
8.1.1. Borrower shall fail to pay when due any
installment of principal or interest, or any fee or charge
payable hereunder, and such failure shall continue for a
period of fifteen (15) days;
8.1.2. Borrower shall fail to observe or perform any
other obligation to be observed or performed by it hereunder
or under any of the collateral documents, and this failure
shall continue for fifteen (15) days after (a) notice of
failure from the Lender or (b) Lender is notified of the
failure or should have been so notified pursuant to the
terms of this Agreement, whichever is earlier;
8.1.3. Borrower shall fail to pay any indebtedness due to
any third persons, and this failure shall continue beyond
any applicable grace period, or Borrower shall suffer to
exist any other event of default under any agreement binding
Borrower;
8.1.4. Any financial statement, representation, warranty,
or certificate made or furnished by Borrower to Lender in
connection with this Agreement, or as an inducement to
Lender to enter into this Agreement, or in any separate
document or statement to be delivered hereunder to Lender,
shall be materially false, incorrect or incomplete when
made;
8.1.5. Borrower shall admit its inability to pay its
debts as they mature, or shall make an assignment for the
benefit of its or any of its creditors;
8.1.6. Proceedings in bankruptcy, or for reorganization
of Borrower, or for the readjustment of any of Borrower's
debts, under the Bankruptcy Code, as amended, or any part
thereof, or under any other laws, whether state or federal,
for the relief of debtors, now or hereafter existing, shall
be commenced against Borrower and shall not be discharged
within six (6) months of their commencement, or any such
proceeding shall be commenced by Borrower;
8.1.7. A receiver or trustee shall be appointed for
Borrower or for any substantial part of its assets, or any
proceedings shall be instituted for the dissolution or the
full or partial liquidation of Borrower, and the receiver or
trustee shall not be discharge within six (6) months of his
or her appointment, or the proceedings shall not be
discharged within six (6) months of their commencement, or
Borrower shall discontinue business or materially change the
nature of its business;
8.1.8. Borrower shall suffer final judgments for payment
of money, not covered by insurance, aggregating in excess of
One Million ($1,000,000.00) Dollars and shall not discharge
the same within sixty (60) days, unless, pending further
proceedings, execution has not been commenced or, if
commenced, has been effectively stayed;
8.1.9. A judgment creditor of Borrower shall obtain
possession of any of the collateral by any means, including,
without limitation, levy, replevin, or self-help
8.2. Acceleration. Immediately, and without notice, on the
occurrence of an event of default specified in this section,
or at the option of Lender on such occurrence, but only on
written notice to Borrower, or on the occurrence of any
other event of default, all obligations, whether hereunder
or otherwise, shall immediately become due and payable
without further action of any kind.
8.3. Remedies. After any acceleration as provided in this
section, Lender shall have, in addition to the rights and
remedies given to it by this Agreement, the Note and the
collateral documents, all those rights and remedies allowed
by all applicable laws, including, but not limited to, the
Uniform Commercial Code as enacted in any jurisdiction in
which any collateral may be located. Without limiting the
generality of the foregoing, Lender, immediately and without
demand of performance and without other notice, except as
specifically required by this Agreement or the collateral
documents, for any demand whatsoever to Borrower, all of
which are hereby expressly made, and, without advertisement,
may sell at public or private sale, or otherwise realized,
in Metairie, Louisiana, or elsewhere, the whole, or from
time to time, any part of the collateral, or any interest
that Borrower may have therein. After deducting from the
proceeds of sale or other disposition of the collateral all
expenses, including all reasonable expenses for legal
services, Lender shall apply such proceeds towards the
satisfaction of the obligations. Any remainder of the
proceeds after satisfaction in full of the obligation shall
be distributed as required by applicable laws. Notice of
any sale or other disposition shall be given to Borrower at
least thirty (30) days before the time of any intended
public sale or of the time after which any intended private
sale or other disposition of the collateral is to be made,
which Borrower hereby agrees shall be reasonable notice of
such sale or other disposition. Borrower agrees to
assemble, or cause to be assembled, at its own expense, the
collateral at such place or places as Lender shall
designate. At any such sale or other disposition, Lender,
to the extent possible under applicable laws, may purchase
the whole or any part of the collateral, free from any right
of redemption on the part of Borrower, which right is hereby
waived and released. Without limiting the generality of any
of the rights and remedies conferred on Lender under this
paragraph, Lender, to the full extent permitted by
applicable laws, may:
8.3.1. Enter on the premises of Borrower, exclude
therefrom Borrower or any affiliate, and take immediate
possession of the collateral, either personally or by means
of a receiver appointed by a court of competent jurisdiction
8.3.2. At Lender's option, use, operate, manage, and
control the collateral in any manner;
8.3.3. Collect and receive all rents, income, revenue,
earnings, issues, and profits; and
8.3.4. Maintain, repair, renovate, alter, or remove the
collateral as Lender may determine in its discretion.
9. Construction.
The provisions of this Agreement shall
be in addition to those of any guaranty, pledge, security
agreement, note, or other evidence of liability held by
Lender, all of which shall be construed as complementary to
each other. Nothing herein contained shall prevent Lender
from enforcing any or all other notes, guaranty, pledge, or
security agreements in accordance with their respective
terms.
10. Further Assurance.
From time to time, Borrower shall execute and
deliver to Lender such additional documents and will provide
such additional information as Lender may reasonably require
to carry out the terms of this Agreement and be informed of
Borrower's state and affairs.
11. Enforcement and Waiver by Lender.
Lender shall have the right at all times to enforce
the provisions of this Agreement and the collateral documents in
strict accordance with their terms, notwithstanding any conduct or
custom on the part of Lenderin refraining from so doing at any time
or times. The failure of Lender at any time or times to enforce its
rights under such provisions, strictly in accordance with the same,
shall not be construed as having created a custom in any way
or manner contrary to specific provisions of this Agreement
or as having in any way or manner modified or waived the
same. All rights and remedies of Lender are cumulative and
concurrent, and the exercise of one right or remedy shall
not be deemed a waiver or release of any other right or
remedy.
12. Expenses of Lender.
Borrower, on demand, will reimburse Lender for all expenses,
including the reasonable fees and expenses of legal counsel for Lender,
incurred by Lender in connection with the preparation, administration,
amendment, modification, or enforcement of this Agreement and the
collateral documents, and the collection or attempted collection of the
Note.
13. Notices.
Any notices or consents required or permitted
by this Agreement shall be in writing and shall be deemed
delivered if delivered in person, or, if sent, by certified
mail, postage prepaid, return receipt requested, or by
facsimile, as follows, unless such address or facsimile
number is changed by written notice:
If to Borrower: Cucos Inc.
000 Xxxxxxxx Xxxx.
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Lender: Jacksonville Restaurant
Acquisition Corp.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
14. Governing Law.
It is agreed that this Agreement shall be governed by,
construed, and enforced in accordance with the laws of the State of
Florida. Any action to enforce the terms of this Agreement shall be
commenced in Federal or State court in the State of Florida.
15. Binding Effect.
This Agreement shall inure to the benefit of, and
shall be binding on, the respective successors and permitted assigns
of the parties.
16. Assignment.
Borrower has no right to assign any of its rights or
obligations under this Agreement without the prior, express written
consent of Lender, which consent shall not be withheld unreasonably.
17. Entire Agreement.
This Agreement shall constitute the entire agreement
between the parties, and any prior agreement, understanding or
representation of any kind preceding the date of this Agreement shall
not be binding on either party except to the extent incorporated in
this Agreement.
18. Modification.
Any modification of this Agreement or additional
obligation assumed by either party in connection with this
Agreement shall be binding only if evidenced in writing
signed by each party or an authorized representative of each
party.
19. Attorney Fees.
In the event any action is filed in relation to this
Agreement, the unsuccessful party in the action shall pay to the
successful party, in addition to all sums that either party may be
called on to pay, a reasonable sum for the successful party's attorney
fees.
20. Paragraph Headings.
The paragraph headings of this Agreement are solely
for the convenience of the parties and shall not be used to explain,
modify, simplify, or aid in the interpretation of the provisions
of this Agreement.
21. Severability.
If any provision of this Agreement shall be held
invalid under any applicable laws, invalidity shall not
affect any other provision of this Agreement that can be
given effect without the invalid provision, and, to this
end, the provisions of this Agreement are severable.
22. Stock Restricted.
Any stock issued to Lender pursuant to this Agreement
shall be restricted stock and bear a legend evidencing same
satisfactory to the Board of Directors of the Borrower.
IN WITNESS WHEREOF, the parties have executed this
Agreement effective the day and year first above written.
Cucos Inc.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx, X. Xxxxxx, President
Jacksonville Restaurant Acquisition
Corp.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Grinnn, Vice President
PROMISSORY NOTE
$5,000,000.00 September 1, 2000
City of Metairie
State of Louisiana
1. For value received, Cucos Inc. ("Borrower"), 000
Xxxxxxxx Xxxx., Xxxxxxxx, XX 00000, promises to pay to the
order of Jacksonville Restaurant Acquisition Corp.
("Lender"), 0000 Xxxxxxxx Xxx Xxxxx, Xxxxxxxxxxxx, XX
00000, the principal sum of Five Million ($5,000,000.00)
Dollars or the aggregate unpaid principal amount of all
advances by Lender pursuant to a Line of Credit Agreement,
executed on even date, and to pay interest from the date of
each advance until paid in full.
2. The term of this Note shall be ten (10) years.
3. "Interest Rate" means three percentage points above the
prime rate of increase charged by Xxxxx Fargo Bank to its
preferred customers, as adjusted pursuant to this Agreement.
The initial interest rate shall be determined as of August
20, 2000. Commencing December 1, 2001, the Interest Rate
shall be adjusted annually on December 1 for the
installments due commencing the following January 1. The
Interest Rate used shall be determined as of close of
business on November 30 of said year, or if the last
business day is earlier than November 30, then on said last
business day. Interest shall be calculated on the basis of
a 360-day year, counting the actual number of days elapsed.
4. Commencing January 1, 2001, the principal of the loan
shall be repaid in one hundred twenty (120) consecutive
monthly installments payable on the first day of each month.
The amount of each principal installment shall be the amount
of principal outstanding as of the date of payment,
multiplied by a fraction, the numerator of which is one and
the denominator of which is the number of months remaining
in the term, including the month in which the payment is
due. In addition to the aforesaid principal payment, each
monthly payment shall include interest computed on the
average daily principal balance outstanding in the month
prior to the payment due date at the Interest Rate then in
effect, taking into account all advances received and
payments made during said prior month.
5. Borrower, without penalty or premium, may prepay the
principal of the loan, in whole or in part, at any time and
from time to time, in multiples of Ten Thousand ($10,000.00)
Dollars. All such partial prepayments shall be applied
against the installments of principal required herein in the
inverse order of maturity.
6. Payments shall be made in immediately available funds
by check mailed to Lender at Lender's address above, or at
such other address as Lender may designate in writing, or,
at Lender's request, by wire transfer to Lender at
Borrower's expense.
7. This Note is secured by a security interest in
collateral set forth in the Credit Line Agreement.
8. Borrower waives presentment, protest, demand, and
notice of dishonor. No renewal or extension of this Note,
no release of collateral securing payment of this Note, and
no delay in the enforcement of this Note or in exercising
any right or power of the Lender shall affect the liability
of Borrower. The defense of the statute of limitations
against any demands made by the Lender is expressly waived
by Borrower.
9. In the event an action is commenced to enforce payment
of this revolving credit Note, Borrower agrees to pay
reasonable attorney fees and costs.
10. Any action to enforce this Note shall be commenced in
a Federal or State court of competent jurisdiction in the
State of Florida. In any such action, Borrower waives the
right to a jury trial
11. This Note shall be interpreted in accordance with the
laws of the State of Florida.
Cucos Inc.
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx, President
STATE OF LOUISIANA )
) ss:
PARISH OF JEFFERSON )
On the 29th day of September, 2000, before me, the
undersigned, a Notary Public in and for said State,
personally appeared XXXXX X. XXXXXX personally known to me
or proved to me on the basis of satisfactory evidence to be
the individual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their capacity(ies), and that
by his/her/their signature(s) on the instrument, the
individual(s), or the person on behalf of which the
individual(s) acted, executed the instrument.
/s/ Xxxx Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxxxx, Notary Public
