Exhibit 10.02
STATE OF FLORIDA DOCUMENTARY STAMP TAX AND NON-RECURRING INTANGIBLE TAX
THAT IS DUE ON THIS CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE HAS
BEEN PAID AND EVIDENCE OF SAID PAYMENT APPEARS ON THE MORTGAGE
CONSOLIDATED, AMENDED AND RESTATED
PROMISSORY NOTE
THIS CONSOLIDATED, AMENDED AND RESTATED PROMISSORY NOTE is made and entered
into as of the day of October, 2002, by and between FAMILY STEAK HOUSES
OF FLORIDA, INC., a Florida corporation ("Borrower") and GE CAPITAL FRANCHISE
FINANCE CORPORATION, a Delaware corporation ("Lender").
A loan was made by FFCA Mortgage Corporation, a Delaware corporation
("Original Lender") to Borrower in the original principal amount of $______, the
repayment of which is evidenced by a Promissory Note dated ______ (the "Original
Note"). The Original Note is secured by a Mortgage, Assignment of Rents And
Leases, Security Agreement and Fixture Filing dated _________ and recorded among
the Public Records of Volusia County, Florida in Official Record Book 864, Page
1288 (the "Original Mortgage"), on certain improved real property located in
Daytona, Florida, such Original Mortgage and Original Note was assigned by
Original Lender to LaSalle Bank National Association, f/k/a LaSalle National
Bank, Trustee pursuant to that certain Indenture dated as of April 1, 1999
("LaSalle") and subsequently assigned by LaSalle to Lender. Subsequently,
Borrower requested and Lender agreed to make an additional loan to Borrower in
the original principal amount of $458,720.94, the repayment of which is
evidenced by that certain Promissory Note dated of even date herewith (the
"Sandwich Note"). Borrower has requested and Lender has agreed to make certain
amendments to the Original Note and Sandwich Note, including changing the
interest rate and the terms of payment, and consolidating the Original Note
and the Sandwich Note. The Original Note and the Sandwich Note are being
consolidated, amended and restated in their entirety to reflect such amendments
State of Florida Documentary Stamp Tax and Nonrecurring Intangible Tax were paid
on the Original Note and Sandwich Note. The Original Mortgage is concurrently
being amended and restated pursuant to the terms of that certain Amended and
Restated Mortgage, Assignment of Rents And Leases, Security Agreement and
Fixture Filing of even date herewith (as so amended and restated, the
"Mortgage").
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Borrower and Lender agree that the Original Note is hereby
amended and restated in its entirety as follows (as amended and restated, the
"Note"):
PROMISSORY NOTE
Dated as of ______, 2002
$889,000.00 Scottsdale, Arizona
FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation ("Borrower"),
for value received, hereby promises to pay to GE CAPITAL FRANCHISE FINANCE
CORPORATION, a Delaware corporation ("Lender"), whose address is 00000 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, or order, on or before _______ ,
2017 (the "Maturity Date"), the principal sum of $889,000.00, as herein
provided. Initially capitalized terms which are not otherwise defined in this
Note shall have the meanings set forth in that certain Loan Agreement dated as
of the date of this Note between Borrower and Lender, as such agreement may be
amended, restated and/or supplemented from time to time (the "Loan Agreement").
In addition, the following terms shall have the following meanings for all
purposes of this Note:
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"Adjustable Rate" means an annual interest rate equal to the sum of the
Adjustable Rate Basis plus 3.75%; provided, however, the Adjustable Rate shall
in no event ever be less than 7.34%.
"Adjustable Rate Basis" means, for any Interest Period, the annual interest
rate (rounded upwards, if necessary, to the nearest 1/100th of one percent)
equal to the one month London Interbank Offered Rate ("LIBOR") on the Adjustable
Rate Reset Date as published in The Wall Street Journal. If for any reason such
rate is no longer published in The Wall Street Journal, Lender shall select such
replacement index as Lender in its sole discretion determines most closely
approximates such rate.
"Adjustable Rate Reset Date" means the last Business Day of each calendar
month, prior to the next Interest Period.
"First Payment Date" means .
"Interest Period" means (i) initially, the period beginning on the date of
this Note and ending on the last day of the calendar month in which such date
occurs, and (ii) thereafter, the period beginning on the first day of the
calendar month and ending on the last day of such calendar month.
"Payment Period" means (i) initially, the twelve month period beginning on the
First Payment Date and ending on the day immediately prior to the first Payment
Reset Date, and (ii) thereafter, the twelve month period beginning on each
Payment Reset Date and ending on the day immediately prior to the next Payment
Reset Date.
"Payment Reset Calculation" means the level monthly payment calculated by
the full amortization of the outstanding principal amount of this Note on the
Payment Reset Date at the Adjustable Rate (with the definition of "Adjustable
Rate Reset Date" defined to mean the last Business Day of the calendar month two
months prior to the next Payment Reset Date) over the remaining originally
scheduled term of this Note.
"Payment Reset Date" means each anniversary of the First Payment Date.
Borrower shall pay interest on the outstanding principal amount of this
Note at the Adjustable Rate, determined monthly as described above, on the basis
of a 360-day year for the actual number of days elapsed, in arrears, provided,
that, interest on the principal amount of this Note for the period commencing
with the date such principal amount is advanced by Lender through the last day
in the month in which this Note is dated shall be due and payable upon delivery
of this Note. Commencing on the First Payment Date, Borrower shall pay
consecutive monthly installments on the first day of each calendar month during
the term of this Note prior to the Maturity Date. The monthly installments
shall be level during a Payment Period. The initial level monthly payments for
the first Payment Period shall be equal to $____________ until the first Payment
Reset Date, at which time, and on each succeeding Payment Reset Date thereafter,
the level monthly payment to be paid by Borrower shall be adjusted for the next
succeeding Payment Period based on the Payment Reset Calculation. All
outstanding principal and unpaid accrued interest shall be paid on the Maturity
Date.
Upon execution of this Note, Borrower shall authorize Lender to establish
arrangements whereby all payments of principal and interest hereunder are
transferred by Automated Clearing House Debit initiated by Lender directly from
an account at a U.S. bank in the name of Borrower to such account as Lender may
designate or as Lender may otherwise designate. Each payment of principal and
interest hereunder shall be applied first toward any past due payments under
this Note (including payment of all Costs (as herein defined)), then to accrued
interest at the Adjustable Rate, and the balance, after the payment of such
accrued interest, if any, shall be applied to the unpaid principal balance of
this Note; provided, however, each payment hereunder after an Event of Default
has occurred shall be applied as Lender in its sole discretion may determine.
After application of any monthly payment in the above manner, in the event that
the outstanding principal amount of this Note exceeds 110% of the original
principal balance of this Note, Borrower shall prepay, without premium or
penalty, on the first day of the next succeeding calendar month after each such
occurrence, a principal amount equal to the difference between the outstanding
principal balance of this Note and the original principal balance of this Note
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(the "Negative Amortization Amount"). Lender shall notify Borrower in writing
on or before the twenty-fifth day of each calendar month during the term of this
Note of Lender's determination of the Negative Amortization Amount, if any,
payable on the first day of the next succeeding calendar month. Lender shall
also notify Borrower in writing on or before the twenty-fifth day of the
calendar month prior to the next Payment Reset Date during the term of this Note
of Lender's determination of the level monthly payment to be paid by Borrower
based on the Payment Reset Calculation for the next Payment Period.
Borrower may prepay this Note in full, but not in part (except as otherwise
set forth below), including all accrued but unpaid interest hereunder and all
sums advanced by Lender pursuant to the Loan Documents and any Other Agreements,
provided that (i) no Event of Default has occurred under any of the Loan
Documents or any Other Agreements and (ii) any such prepayment shall only be
made on a regularly scheduled payment date upon not less than 30 days prior
written notice from Borrower to Lender.
This Note is secured by the Mortgage and the other Loan Documents. Upon
the occurrence of an Event of Default, Lender may declare the entire unpaid
principal balance of this Note, accrued interest, if any, and all other sums due
under this Note and any Loan Documents or Other Agreements, due and payable at
once without notice to Borrower. All past-due principal and/or interest shall
bear interest from the due date to the date of actual payment at the lesser of
(i) the highest rate for which the undersigned may legally contract, or (ii) the
greater of 14% and the rate which is 6% per annum above the Adjustable Rate (the
"Default Rate"), and such Default Rate shall continue to apply following a
judgment in favor of Lender under this Note. If Borrower fails to make any
payment or installment due under this Note within five days of its due date,
Borrower shall pay to Lender, in addition to any other sum due Lender under this
Note or any other Loan Document, a late charge equal to 5% of such past-due
payment or installment (the "Late Charge"), which Late Charge is a reasonable
estimate of the loss that may be sustained by Lender due to the failure of
Borrower to make timely payments. All payments of principal and interest
due hereunder shall be made (i) without deduction of any present and future
taxes, levies, imposts, deductions, charges or withholdings, which amounts shall
be paid by Borrower, and (ii) without any other right of abatement, reduction,
setoff, defense, counterclaim, interruption, deferment or recoupment for any
reason whatsoever. Borrower will pay the amounts necessary such that the gross
amount of the principal and interest received by Lender is not less than that
required by this Note.
No delay or omission on the part of Lender in exercising any remedy, right
or option under this Note shall operate as a waiver of such remedy, right or
option. In any event, a waiver on any one occasion shall not be construed as a
waiver or bar to any such remedy, right or option on a future occasion.
Borrower hereby waives presentment, demand for payment, notice of dishonor,
notice of protest, and protest, notice of intent to accelerate, notice of
acceleration and all other notices or demands in connection with delivery,
acceptance, performance, default or endorsement of this Note. All notices,
consents, approvals or other instruments required or permitted to be given by
either party pursuant to this Note shall be given in accordance with the notice
provisions in the Loan Agreement. Should any indebtedness represented by this
Note be collected at law or in equity, or in bankruptcy or other proceedings, or
should this Note be placed in the hands of attorneys for collection after
default, Borrower shall pay, in addition to the principal and interest due and
payable hereon, all costs of collecting or attempting to collect this Note (the
"Costs"), including reasonable attorneys' fees and expenses of Lender (including
those fees and expenses incurred in connection with any appeal) and court costs
whether or not a judicial action is commenced by Lender. This Note may not be
amended or modified except by a written agreement duly executed by the party
against whom enforcement of this Note is sought. In the event that any one or
more of the provisions contained in this Note shall be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Note, and this
Note shall be construed as if such provision had never been contained herein or
therein. Time is of the essence in the performance of each and every obligation
under this Note.
Notwithstanding anything to the contrary contained in any of the Loan
Documents, the obligations of Borrower to Lender under this Note and any other
Loan Documents are subject to the limitation that payments of interest and late
charges to Lender shall not be required to the extent that receipt of any such
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payment by Lender would be contrary to provisions of applicable law limiting the
maximum rate of interest that may be charged or collected by Lender. The
portion of any such payment received by Lender that is in excess of the maximum
interest permitted by such provisions of law shall be credited to the principal
balance of this Note or if such excess portion exceeds the outstanding principal
balance of this Note, then such excess portion shall be refunded to Borrower.
All interest paid or agreed to be paid to Lender shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and/or spread throughout
the full term of this Note (including, without limitation, the period of any
renewal or extension thereof) so that interest for such full term shall not
exceed the maximum amount permitted by applicable law.
This obligation shall bind Borrower and its successors and assigns, and the
benefits hereof shall inure to Lender and its successors and assigns.
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IN WITNESS WHEREOF, Borrower has executed and delivered this Note effective
as of the date first set forth above.
BORROWER:
FAMILY STEAK HOUSES OF FLORIDA, INC., a
Florida corporation
By __________________________
Name ________________________
Title _______________________
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