PROMISSORY NOTE Exhibit 10.88
Call/
Principal Loan Date Maturity Loan No Coll Account Officer Initials
$2,000,000 05-26-2004 05-26-2009 1263
________________________________________________________________________________
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "***" has been omitted due to text length limitations.
Borrower: S & W New Orleans, L.L.C. (TIN: 00-0000000) Lender: Hibernia National Bank
0000 Xxxxx Xxx. Attn: Loan Administration Dept.
New York, NY 10021 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Principal Amount: $2,000,000.00 Interest Rate: 6.270% Date of Note: May 26, 2004
PROMISE TO PAY. S & W New Orleans, L.L.C. ("Borrower") promises to pay to the
order of Hibernia National Bank ("Lender"), in lawful money of the United States
of America the sum of Two Million 5 00100 Dollars(U.S. $2,000,000.00), together
with simple interest at the rate of 6.270/o per annum assessed on the unpaid
principal balance of this Note as outstanding from time to time, commencing on
May 26, 2004 and continuing until this Note Is paid in full.
PAYMENT. Borrower will pay this loan on demand. Payment In full Is due
Immediately upon Xxxxxx's demand. If no demand is made, Xxxxxxxx will pay this
loan in 59 regular payments of $17,271.50 each and one Irregular last payment
estimated at $1,547,656.61. Xxxxxxxx's first payment is due June 26, 2004, and
all subsequent payments are due on the same day of each month after that.
Xxxxxxxx's final payment due on May 26, 2009, may be greater If Borrower does
not make payments as scheduled. Unless otherwise agreed or required by
applicable law, payments will be applied first to any accrued unpaid Interest;
then to principal; then to any late charges; and then to any unpaid collection
costs. The annual interest rate for this Note is computed on a 365/360 basis;
that Is, by applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual
number of days the principal balance is outstanding. Borrower will pay Lender at
Xxxxxx's address shown above or at such other place as Lender may designate in
writing.
PREPAYMENT. Other than Borrower s obligation to pay any prepayment penalty,
Borrower may prepay this Note in full at any time by paying the then unpaid
principal balance of this Note, plus accrued simple interest and any unpaid late
charges through date of prepayment. If Borrower prepays this Note in full, or if
Lender accelerates payment, Borrower understands that, unless otherwise required
by law, any prepaid fees or charges will not be subject to rebate and will be
earned by Xxxxxx at the time this Note is signed. Early payments will not,
unless agreed to by Xxxxxx in writing, relieve Xxxxxxxx of Xxxxxxxx's obligation
to continue to make payments under the payment schedule. Rather, early payments
will reduce the principal balance due and may result in Borrower's making fewer
payments. Xxxxxxxx agrees not to send Lender payments marked "paid in full",
'Without recourse", or similar language. If Borrower sends such a payment,
Xxxxxx may accept it without losing any of Xxxxxx's rights under this Note, and
Borrower will remain obligated to pay any further amount owed to Lender. All
written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes "payment in full"
of the amount owed or that is tendered with other conditions or limitations or
as full satisfaction of a disputed amount must be mailed or delivered to;
Hibernia National Bank, P.O. Box 61540 New Orleans, IA 70161.
LATE CHARGE. If Borrower fails to pay any payment under this Note in full within
10 days of when due, Xxxxxxxx agrees to pay Lender a late payment tee in an
amount equal to 10.000% of the delinquent interest due or $29.00, whichever is
greater. Late charges will not be assessed following declaration of default and
acceleration of the maturity of this Note.
INTEREST AFTER DEFAULT. If Xxxxxx declares this Note to be in default, Lender
has the right prospectively to adjust and fix the simple interest rate under
this Note until this Note is paid in full, as follows: (A) If the original
principal amount of this Note is $250,000 or less, the fixed default interest
rate shall be equal to eighteen (18%) percent per annum, or three (3%) per cent
per annum in excess of the interest rate under this Note, whichever is greater.
(B) If the original principal amount of this Note is more than $250,000, the
fixed default interest rate shall be equal to twenty-one (21%) percent per
annum, or three (3%) per cent per annum in excess of the interest rate under
this Note at the time of default, whichever is greater.
DEFAULT. Each of the following shall constitute an event of default ("Event of
Default") under this Note:
Default Under Loan Agreement. If an event of default occurs or exists under the
terms of Borrower's Loan Agreement in favor of Xxxxxx.
Payment Default. Borrower fails to make any payment when due under this Note.
Default Under Security Agreements. Should Borrower or any guarantor violate, or
fail to comply fully with any of the terms and conditions of, or default under
any security right, instrument, document, or agreement directly or indirectly
securing repayment of this Note.
Other Defaults In Favor of Lender. Should Borrower or any guarantor of this Note
default under any other loan, extension of credit, security right, instrument,
document, or agreement, or obligation in favor of Lender.
Default in Favor of Third Parties. Should Borrower or any guarantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person that
may affect any property or other collateral directly or indirectly securing
repayment of this Note.
Insolvency. Should the suspension, failure or insolvency, however evidenced, of
Borrower or any Guarantor of this Note occur or exist. Death or Interdiction.
Should any guarantor of this Note die or be interdicted.
Readjustment of Indebtedness. Should proceedings for readjustment of
indebtedness, reorganization, bankruptcy, composition or extension under any
insolvency law be brought by or against Borrower or any guarantor.
Assignment for Benefit of Creditors. Should Borrower or any guarantor file
proceedings for a respite or make a general assignment for the benefit of
creditors.
Receivership. Should a receiver of all or any part of Xxxxxxxx's property, or
the property of any guarantor, be applied for or appointed. Dissolution
Proceedings. Proceedings for the dissolution or appointment of a liquidator of
Borrower or any guarantor are commenced.
False Statements. Any warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf related documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
Material Adverse Change. Should any material adverse change occur in the
financial condition of Borrower or any guarantor of this Note or should any
material discrepancy exist between the financial statements submitted by
Borrower or any guarantor and the actual financial condition of Borrower or such
guarantor.
Insecurity. Lender in good faith believes itself insecure with regard to
repayment of this Note.
XXXXXX'S RIGHTS UPON DEFAULT. Should any one or more default events occur or
exist under this Note as provided above, Lender shall have the right, at
Xxxxxx's sole option, to declare formally this Note to be in default and to
accelerate the maturity and insist upon immediate payment in full of the unpaid
principal balance then outstanding under this Note, plus accrued interest,
together with reasonable attorneys' fees, costs, expenses and other fees and
charges as provided herein. Lender shall have the further right, again at
Xxxxxx's sole option, to declare formal default and to accelerate the maturity
and to insist upon immediate payment in full of each and every other loan,
extension of credit, debt, liability and/or obligation of every nature and kind
that Borrower may then owe to Lender, whether direct or indirect or by way of
assignment, and whether absolute or contingent, liquidated or unliquidated,
voluntary or involuntary, determined or undetermined, secured or unsecured,
whether Borrower is obligated alone or with others on a "solidary" or "joint and
several" basis, as a principal obligor or otherwise, all without further notice
or demand, unless Lender shall otherwise elect.
ATTORNEYS' FEES; EXPENSES. If Xxxxxx refers this Note to an attorney for
collection, or files suit against Borrower to collect this Note, or if Borrower
files for bankruptcy or other relief from creditors, Xxxxxxxx agrees to pay
Xxxxxx's reasonable attorneys' fees in an amount not exceeding 25.000% of the
principal balance due on the loan.
WAIVE JURY. XXXXXXXX AND XXXXXX XXXXXX WAIVE THE RIGHT TO ANY JURY TRIAL IN
ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY XXXXXX XXXXXXXX OR LENDER
AGAINST THE OTHER.
GOVERNING LAW. This Note will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Louisiana. This Note
has been accepted by Lender In the State of Louisiana.
NSF CHECK CHARGE. In the event that Borrower makes any payment under this Note
by check and Borrower's check is returned to Lender unpaid due to nonsufficient
funds in Borrower's deposit account, Xxxxxxxx agrees to pay Xxxxxx an additional
NSF check charge in an amount of $29.00.
PROMISSORY NOTE (Continued)
Page 2
DEPOSIT ACCOUNTS. As collateral security for repayment of this Note and all
renewals and extensions, as well as to secure any and all other loans, notes,
indebtedness and obligations that Borrower may now and in the future owe to
Lender or incur in Lender's favor, whether direct or indirect, absolute or
contingent, due or to become due, of any nature and kind whatsoever (with the
exception of any indebtedness under a consumer credit card account), and to the
extent permitted by law, Borrower is granting Lender a continuing security
interest in any and all funds that Borrower may now and in the future have on
deposit with Lender or in certificates of deposit or other deposit accounts as
to which Borrower is an account holder (with the exception of IRA, pension, and
other tax-deferred deposits). Xxxxxxxx further agrees that, to the extent
permitted by law, Xxxxxx may at any time apply any funds that Borrower may have
on deposit with Lender or in certificates of deposit or other deposit accounts
as to which Borrower is an account holder against the unpaid balance of this
Note and any and all other present and future indebtedness and obligations that
Borrower may then owe to Lender, in principal, interest, fees, costs, expenses,
and reasonable attorneys' fees.
FINANCIAL STATEMENTS. Xxxxxxxx agrees to provide Xxxxxx with such financial
statements and other related information at such frequencies and in such detail
as Lender may reasonably request.
WAIVERS. Borrower and each guarantor of this Note hereby waive demand,
presentment for payment, protest, notice of protest and notice of nonpayment,
and all pleas of division and discussion, and severally agree that their
obligations and liabilities to Lender hereunder shall be on a "solidary" or
"joint and several" basis. Borrower and each guarantor further severally agree
that discharge or release of any party who is or may be liable to Lender for the
indebtedness represented hereby, or the release of any collateral directly or
indirectly securing repayment hereof, shall not have the effect of releasing any
other party or parties, who shall remain liable to Lender, or of releasing any
other collateral that is not expressly released by Lender. Borrower and each
guarantor additionally agree that Xxxxxx's acceptance of payment other than in
accordance with the terms of this Note, or Lender's subsequent agreement to
extend or modify such repayment terms, or Lender's failure or delay in
exercising any rights or remedies granted to Lender, shall likewise not have the
effect of releasing Borrower or any other party or parties from their respective
obligations to Lender, or of releasing any collateral that directly or
indirectly secures repayment hereof. In addition, any failure or delay on the
part of Lender to exercise any of the rights and remedies granted to Lender
shall not have the effect of waiving any of Lender's rights and remedies. Any
partial exercise of any rights and/or remedies granted to Xxxxxx shall
furthermore not be construed as a waiver of any other rights and remedies; it
being Borrower's intent and agreement that Xxxxxx s rights and remedies shall be
cumulative in nature. Borrower and each guarantor further agree that, should any
default event occur or exist under this Note, any waiver or forbearance on the
part of Lender to pursue the rights and remedies available to Lender, shall be
binding upon Lender only to the extent that Xxxxxx's specifically agrees to any
such waiver or forbearance in writing. A waiver or forbearance on the part of
Lender as to one default event shall not be construed as a waiver or forbearance
as to any other default. Borrower and each guarantor of this Note further agree
that any late charges provided for under this Note will not be charges for
deferral of time for payment and will not and are not intended to compensate
Xxxxxx's for a grace or cure period, and no such deferral, grace or cure period
has or will be granted to Borrower in return for the imposition of any late
charge. Borrower recognizes that Xxxxxxxx's failure to make timely payment of
amounts due under this Note will result in damages to Lender, including but not
limited to Xxxxxx's loss of the use of amounts due, and Xxxxxxxx agrees that any
late charges imposed by Xxxxxx hereunder will represent reasonable compensation
to Lender for such damages. Failure to pay in full any installment or payment
timely when due under this Note, whether or not a late charge is assessed, will
remain and shall constitute an Event of Default hereunder.
SUCCESSORS AND ASSIGNS LIABLE. Xxxxxxxx's and each guarantor's obligations and
agreements under this Note shall be binding upon Xxxxxxxx's and each guarantor's
respective successors, heirs, legatees, devisees, administrators, executors and
assigns. The rights and remedies granted to Lender under this Note shall inure
to the benefit of Xxxxxx's successors and assigns, as well as to any subsequent
holder or holders of this Note.
CAPTION HEADINGS. Caption headings in this Note are for convenience purposes
only and are not to be used to interpret or define the provisions of this Note.
SEVERABILITY. If any provision of this Note is held to be invalid, illegal or
unenforceable by any court, that provision shall be deleted from this Note and
the balance of this Note shall be interpreted as if the deleted provision never
existed.
SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Xxxxxxxx, and
upon Xxxxxxxx's successors, heirs, legatees, devisees, administrators, executors
and assigns, and shall inure to the benefit of Xxxxxx and its successors and
assigns.
NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES.
Please notify us if we report any inaccurate information about your account(s)
to a consumer reporting agency. Your written notice describing the specific
inaccuracy(ies) should be sent to us at the following address: Hibernia National
Bank, Loan Services, P.O. Box 61007 New Orleans, LA 70161
APPLICABLE LENDING LAW. This business or commercial Note is subject to La. R.S.
9:3509, et seq.
PRIOR TO SIGNING THIS NOTE, XXXXXXXX READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE. BORROWER:
S & W NEW ORLEANS, LL.C.
THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC., Member of S & W New Orleans,
L.L.C.
By: / S/ Xxxx X. Xxxxxx
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Xxxx X Xxxxxx, Executive Vice President of The
Xxxxx & Wollensky Restaurant Group, Inc.
