3 - SECOND AMENDMENT TO PROMISSORY NOTE AND
ACKNOWLEDGEMENT OF REDUCTION OF PRINCIPAL 0199302.01
FIRST AMENDMENT TO
PROMISSORY NOTE AND ACKNOWLEDGEMENT OF
REDUCTION OF PRINCIPAL
THIS FIRST AMENDMENT TO PROMISSORY NOTE AND ACKNOWLEDGEMENT
OF REDUCTION OF PRINCIPAL ("Note Amendment") is effective
February ___, 1999, by and among CBW INC., an Oregon corporation
("CBW"), EAGLE'S VIEW MANAGEMENT COMPANY, INC., an Oregon
corporation ("Eagles's View"), and ELMER'S RESTAURANTS, INC., an
Oregon corporation ("Elmer's").
RECITALS:
A. CBW and Eagle's View are parties to that certain Second
Amendment to Amended and Restated Loan Agreement and Security
Agreement of even date herewith (the "Second Amendment").
B. Pursuant to the terms of the Second Amendment, the
parties agreed, subject to the terms and conditions contained in
the Second Amendment, to execute this Note Amendment.
NOW THEREFORE, the parties agree to amend the Note and
acknowledge as follows:
AMENDMENT:
1. Acknowledgement of Reduction of Principal. In
consideration of the payment of $2,750,000.00 by Maker to Holder
as of the date of this Note Amendment, the receipt of which is
hereby acknowledged by Xxxxxx, the parties acknowledge and agree
that the principal balance of the Note is reduced to
$1,250,000.00 as of the date of this Note Amendment.
2. Interest Rate. Section 1 of the Note is hereby amended
to state as follows:
"Subject to the provisions of Section 1.3 of the Note,
Maker promises to pay interest, from and including the date of
this Note on the unpaid principal balance of this Note, at a rate
equal to twelve percent (12%) per annum, compounded annually,
from the date of this Note until November 25, 1999, and fifteen
percent (15%) per annum, compounded annually, at all times
thereafter, which shall be calculated on a 365-day year accrual
basis.
3. Maturity. Section 1.2 of the Note is hereby amended to
state as follows:
"1.2 Maturity. The entire unpaid principal balance of
the Note and all accrued but unpaid interest thereon shall be due
and payable on or before February 25, 2004, or immediately upon
demand by Holder after a default as provided below in this Note
(the "Maturity Date")."
4. Security. Section 2 of the Note is hereby amended to
state as follows:
"2. Security. This Note is secured by certain
security interests and liens in favor of Xxxxxx, second in
position to those of Xxxxx Fargo Bank, in all assets of Xxxxx's
Restaurants, Inc., as described in the Second Amendment."
5. Default. Section 3 of the Note is hereby amended to
state as follows:
Time is of the essence of this Note. A default shall
occur if Maker fails to make any payment under this Note within
five (5) days after written notice of such default is provided by
Holder to Maker, or if Maker fails to perform any covenant or
obligation of Maker pursuant to the Loan Agreement between Maker
and Holder, except those obligations waived or satisfied pursuant
to the Second Amendment, after expiration of applicable notice
and cure periods. A default shall also occur if Maker shall
default under any covenant or obligation owed to Xxxxx Fargo or
to any other individual or entity and shall fail to cure such
default within any applicable notice and cure periods if the
performance of such obligation or covenant is secured by any
asset in which Holder has a security interest or lien."
6. All Other Terms and Conditions to Remain Unchanged.
All terms and conditions of the Note not specifically amended or
deleted herein shall remain in full force and effect, as if fully
set forth herein.
7. Assumption of Liability. By executing this Note
Amendment below, Xxxxx's assumes all obligations of Maker under
the Note as if Xxxxx's had been the original Maker of the Note.
Pursuant to this Note Amendment, CBW and Xxxxx's shall be jointly
and severally liable for the Makers' obligations under the Note
as hereby amended.
8. Definitions. Except as provided otherwise herein, all
capitalized items in this Note Amendment shall have the same
definitions as provided in the Amended and Restated Loan
Agreement and Security Agreement, as amended by the Second
Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this
Note Amendment effective the date first written above.
CBW INC., EAGLE'S VIEW MANAGEMENT
an Oregon corporation COMPANY, INC.,
an Oregon corporation
By: ___/s/ Xxxxx X. Xxxxx___ By: ___/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxxxx
Title: President Title: President
Date: 2/17/99 Date: 2/18/99
ELMER'S RESTAURANTS, INC.,
an Oregon corporation
By: ___/s/ Xxxxx X. Xxxxx___
Name: Xxxxx X. Xxxxx
Title: President
Date: 2/17/99