EXHIBIT 10.3
ROADHOUSE GRILL, INC.
UNSECURED NOTE
$2,125.419.70 September 20, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
This Unsecured Note (the "NOTE") has been issued by ROADHOUSE GRILL,
INC., a Florida corporation (the "MAKER") to CNL APF PARTNERS, LP, a Delaware
limited partnership (the "HOLDER") in connection with Maker's Second Amended and
Restated Chapter 11 Plan of Reorganization dated June 12, 2002 (the "PLAN").
Maker issued the Notes under an Indenture, dated as of September 20, 2002 (the
"INDENTURE"), among the Maker and the Trustee. This Note is one of a duly
authorized issue of Notes of the Maker designated as its 5% Unsecured Notes due
2007 (the "Notes"). The Notes are limited (except as otherwise provided in the
Indenture) in aggregate principal amount to $12,000,000. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) (the "ACT"), as amended and in effect on the date of the
Indenture. Notwithstanding anything to the contrary herein, the Notes are
subject to all such terms, and Holders of Notes are referred to the Indenture
and said Act for a statement of them.
FOR VALUE RECEIVED. Maker hereby promises to pay to the order of the
Holder Two Million One Hundred Twenty-Five Thousand Four Hundred Nineteen and
70/100 Dollars ($2,125,419.70) (collectively, the "PRINCIPAL Amount").
1. INTEREST AND PRINCIPAL PAYMENTS.
(a) PAYMENTS. The Principal Amount and interest thereon shall
be due and payable in sixty (60) equal monthly installments of principal and
interest in the amount of Forty Thousand One Hundred Nine and 29/100 Dollars
($40,109.29) each during the term hereof (each, a "MONTHLY PAYMENT" and
collectively, the "MONTHLY PAYMENTS"), commencing on November 1, 2002 and
continuing thereafter on the first (1st) day of every calendar month thereafter
during the term hereof. The Record Date for the Monthly Payments shall be the
last business day of each calendar month. The outstanding Principal Amount and
all accrued but unpaid interest thereon shall be due and payable in full upon
the date that is sixty (60) calendar months from the date hereof (the "MATURITY
Date"). Holder covenants and agrees that all Monthly Payments made by the Maker
under this Note shall be credited to reduce the amount of outstanding principal
and interest due and owing hereunder. All payments of principal and interest
shall be made in lawful money of the United States of America and shall be made
to Holder at Holder's address set forth in Holder's proof of claim filed in
Maker's Chapter 11 case or at such other place as Holder may designate to Maker
from time to time in writing.
(b) RATE OF INTEREST. Interest shall accrue on the Principal
Amount due hereunder from the date hereof up to and through the Maturity Date.
This Note will bear interest on the outstanding Principal Amount hereunder at a
rate of interest equal to five percent (5%) per annum compounded annually and
interest hereunder shall be computed on the basis of a 360-day year of twelve
30-day months and, in the case of a partial month, the actual number of days
elapsed. The Maker shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods), to
the extent lawful, from time to time on demand at the rate borne by the Notes
plus two percent (2%).
2. MANDATORY REDEMPTION. The Notes shall be redeemed, in whole or in
part, on each Redemption Date on which Excess Cash Flow for the preceding Fiscal
Year equals or exceeds $100,000, by payment of such Holder's Ratable Share of
Excess Cash Flow in accordance with the provisions of Section 3.06 of the
Indenture, to those Persons that are registered Holders at the close of business
on the 15th day immediately preceding each Redemption Date. "Ratable Share" of
Excess Cash Flow shall be calculated by multiplying the amount of Excess Cash
Flow available for payment by a fraction, the numerator of which shall be (x)
the outstanding principal amount of the Note held by such Holder and the
denominator of which shall be (y) the sum of the outstanding principal amounts
on the Finova Secured Note, the Secured Notes and the Unsecured Notes as of the
end of the Fiscal Year with respect to which the Excess Cash Flow calculation is
made. If positive Excess Cash Flow for a Fiscal Year is less than $100,000, it
shall be carried over to succeeding Fiscal Years until such time as cumulative
undistributed Excess Cash Flow exceeds $100,000, whereupon it shall be included
in the mandatory redemption payment required on the applicable Redemption Date.
As used herein, "EXCESS CASH FLOW" shall mean, without duplication,
with respect to any Fiscal Year of the Maker, sixty percent (60%) of the
following: net income PLUS (a) depreciation, amortization and interest expense
to the extent deducted in determining net income, PLUS (b) net decreases or
MINUS net increases (as the case may be) in Working Capital, MINUS (c) capital
expenditures during such Fiscal Year (excluding the financed portion thereof),
MINUS (d) interest expense paid or accrued and principal payments paid or
payable in respect of indebtedness for borrowed money or otherwise under the
Plan, PLUS or MINUS (as the case may be) (e) non-recurring gains or losses which
are cash items not included in the calculation of net income, MINUS (f) any
mandatory prepayment paid in cash, plus (g) taxes deducted in determining net
income to the extent not paid for in cash, MINUS (h) cash payments in connection
with the Plan the expenses for which were accrued in a Fiscal Year prior to
Fiscal Year 2003. As used herein, "WORKING CAPITAL" shall mean current assets
minus current liabilities as those terms are construed in accordance with
generally accepted accounting principles. The independent certified public
accountant of Maker will determine and certify to the Trustee as to the amount
of Excess Cash Flow, including the aggregate amount available for the redemption
of all Notes, and such determination shall be binding on Maker and Holder.
Notice of redemption will be mailed at least five days but not more
than ten days before the Redemption Date to each Holder of Notes to be redeemed
at such Holder's registered address. Notes may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of
the Notes called for redemption shall have been deposited with the Paying Agent
for redemption on such Redemption Date, then, unless the Maker defaults in the
payment of such redemption price plus accrued interest, if any, the Notes called
for redemption will cease to bear interest from and after such Redemption Date
and the only right of the Holders of such Notes will be to receive payment of
the redemption price plus accrued interest, if any.
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3. EVENTS OF DEFAULT. The occurrence or existence of an Event of
Default under the terms of the Indenture shall constitute an event of default
hereunder.
4. REMEDIES. If an Event of Default occurs and is continuing, the
Holder of this Note shall have the rights and remedies set forth in the
Indenture.
5. INDENTURE.
(a) Each Holder of this Note, by accepting the same, (a)
agrees to and shall be bound by the terms of the Indenture, (b) authorizes and
directs the Trustee. on' his or her behalf to take such action as may be
necessary or appropriate to effectuate the provisions of this Note and the
Indenture, and (c) appoints the Trustee as his or her attorney-in-tact for any
and all such purposes.
(b) Subject to certain exceptions set forth in the Indenture,
the Indenture or the Notes may be amended or supplemented with the written
consent of the Holders of a majority in aggregate principal amount of the Notes
then outstanding, and any past Default or Event of Default or noncompliance with
any provision may be waived with the written consent of the Holders of a
majority in aggregate principal amount of the Notes then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture or the Notes to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Notes in addition to or in place of
certificated Notes, comply with any requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Act or comply
with Article Five of the Indenture or make any other change that does not
adversely affect the rights of any Holder of a Note.
(c) If an Event of Default occurs and is continuing, the
Trustee or the Holders of not less than 25% in aggregate principal amount of
Notes then outstanding may declare all the Notes to be due and payable in the
manner, at the time and with the effect provided in the Indenture. Holders of
Notes may not enforce the Indenture or the Notes except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the Notes
unless it has received indemnity reasonably satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest when due, for any reason or a
Default in compliance with Article Five of the Indenture) if it determines that
withholding notice is in their interest.
(d) No reference herein to the Indenture and no provision of
this Note or of the Indenture shall alter or impair the obligation of Maker,
which is absolute and unconditional, to pay the Principal Amount hereunder and
all accrued interest thereon (including any liquidated damages, if any) at the
times, places and rate, and in the coin or currency, herein prescribed.
(e) A Holder shall register the transfer of or exchange Notes
in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to
pay certain transfer taxes or similar governmental charges payable in connection
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therewith as permitted by the Indenture. The Registrar need not register the
transfer of or exchange of any Notes or portions thereof selected for
redemption.
(f) Prior to due presentation of this Note for transfer, the
Maker, Trustee and any agent of Maker or the Trustee may treat the Person in
which name this Note is to be transferred and registered, as the owner thereof
for all purposes, whether or not this Note be overdue, and neither the Maker,
Trustee nor any such agent shall be affected by any notice to the contrary.
6. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. If the Maker at any time
deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations
sufficient to pay the principal of and interest on the Notes to redemption or
maturity and complies with the other provisions of the Indenture relating
thereto, the Maker will be discharged from certain provisions of the Indenture
and the Notes (including certain covenants and including, under certain
circumstances, its obligation to pay the principal of and interest on the Notes
but without affecting the rights of the Holders to receive such amounts from
such deposits).
7. TRUSTEE DEALINGS WITH MAKER. The Trustee under the Indenture, in its
individual or any other capacity, may become the owner or pledgee of Notes and
may otherwise deal with the Maker, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
8. NO RECOURSE AGAINST OTHERS. No partner, director, officer, employee,
member or stockholder, as such, of the Maker shall have any liability for any
obligation of the Maker under the Notes or the Indenture.
9. AUTHENTICATION. This Note shall not be valid until the Trustee or
Authenticating Agent manually signs the certificate of authentication on this
Note.
10. NOTICES. All notices, demands, requests and other communications
required or permitted to be given under the provisions of this Note shall be in
writing, unless otherwise specified, and will be deemed to have been duly given
if delivered as provided in the Indenture.
11. MISCELLANEOUS.
(a) SATISFACTION. This Note is given in full satisfaction of
Holder's claims against Maker under the Plan.
(b) SEVERABILITY. In the event any provision of this Note is
deemed to be invalid or unenforceable, the remainder of this Note will continue
in full force and will not be affected thereby and each provision hereof will be
valid and enforceable to the fullest extent permitted by law.
(c) GOVERNING LAW. This Note shall be governed by the
substantive laws of the State of New York, without regard to its principles of
the conflict of laws or the choice of law.
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[SIGNATURE PAGE TO ROADHOUSE GRILL, INC. UNSECURED NOTE]
IN WITNESS WHEREOF. Maker has caused this Note to be executed in its
name and attested to by its authorized officers, and its corporate seal to be
hereunto affixed, all as of the year and date first above written.
MAKER:
ROADHOUSE GRILL, INC., a Florida
corporation
ATTEST: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chief Financial Officer
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, Secretary
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CERTIFICATE OF AUTHENTICATION
This is one of the 5% Unsecured Notes of Roadhouse Grill, Inc. due 2007
referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, as
Trustee under the Indenture
By:
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Name (Print):
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Title: Authorized Signatory
Date of Authentication:
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