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EXHIBIT 10(w)
RENEWAL LINE OF CREDIT NOTE
$20,000,000.00 Nashville, Tennessee March 30, 2000
FOR VALUE RECEIVED, X. XXXXXXXXX'X CORPORATION (f/k/a VOLUNTEER
CAPITAL CORPORATION) and X. XXXXXXXXX'X RESTAURANTS, INC. (f/k/a TOTAL QUALITY
MANAGEMENT, INC.), Tennessee corporations (the "Maker"), jointly and severally
promise to pay to the order of BANK OF AMERICA, N.A., SUCCESSOR TO NATIONSBANK,
N.A., SUCCESSOR TO NATIONSBANK OF TENNESSEE, N.A. ("Payee" or "Bank of
America"), the sum of Twenty Million and No/100 Dollars ($20,000,000.00), or as
much thereof as may be outstanding from time to time, together with interest
thereon as set forth below.
This Note is an amendment and restatement of that certain Line of
Credit Note dated March 27, 1998 from Maker to Payee in the amount of Twenty
Million and No/100 Dollars ($20,000,000.00). Advances under this Note shall be
governed by that certain Loan Agreement dated August 29, 1995, as amended by
that Amendment to Loan Agreement dated March 27, 1998, and as further amended
by that Second Amendment to Loan Agreement of even date herewith ("Loan
Agreement"). Subject to the provisions of the Loan Agreement, Maker may borrow,
repay and reborrow and there is no limit on the number of advances against this
Note as long as the total unpaid principal balance at any time outstanding does
not exceed Twenty Million and No/100 Dollars ($20,000,000.00).
From the date hereof until the stated maturity of this Note, interest
shall accrue at the LIBOR Rate plus a spread of 2.0%, 2.25%, 2.5% or 3.0%
depending on the Senior Debt Coverage Ratio ("SDCR") as further provided in the
Loan Agreement.
From the date hereof until the stated maturity of this Note, a
non-usage fee of either .25%, .35% or .50% based upon the daily average unused
amount and based on the SDCR will be paid quarterly in arrears. If the SDCR is
less than or equal to 2.75 but greater than 2.5, the fee will be .50%; if the
SDCR is less than or equal to 2.5 but greater than 2.25, the fee will be .35%;
if the SDCR is less than or equal to 2.25, the fee will be .25%.
Interest in arrears shall be due and payable on the first (1st) day of
each month beginning on April 1, 2000. All remaining principal and interest
shall become due on July 1, 2001 under the three year revolver, or July 1, 2008
if the option to convert to an additional seven (7) year term loan is
exercised.
Subject to the provisions contained herein, Maker has the option to
convert this Line of Credit Note to a Term Note. Providing that Xxxxxxxx is not
then in default hereunder, Xxxxxxxx may make a written election to convert the
Line of Credit Note to a Term Note any time prior to July 1, 2001. The written
election must be delivered to Payee at least thirty (30) days prior to the
conversion date. After receipt of the election, Xxxxx has sole discretion to
determine what collateral will be required of Maker to provide security for the
term loan. Payee will notify Maker whether or in what manner the
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term loan shall be securitized within fifteen (15) days after receiving the
election. Upon conversion, there will be a conversion fee equal to one-quarter
(1/4) of one percent (1%) of the then outstanding principal balance. The unpaid
principal balance will then be repayable in eighty-four (84) equal monthly
installments of principal with the first principal payment due thirty (30) days
following the conversion date. Interest will continue to be paid monthly at the
same time as the principal payment is due. Interest shall accrue on the Term
Note at the Bank of America Prime Rate, as it may change from time to time or
the LIBOR Rate discussed above or at a fixed rate to be determined by Xxxxx at
the time of receiving the written election. Maker shall specify the interest
rate option (Prime Rate, LIBOR Rate or fixed) to be used in the conversion
election.
As used herein, the term "Bank of America Prime Rate" shall mean the
fluctuating rate of interest established by Bank of America from time to time
as its "Prime Rate", whether or not such rate shall be otherwise published.
Such Prime Rate is established by Bank of America as an index or base rate and
may or may not at any time be the best or lowest rate charged by Bank of
America on any loan. If at any time or from time to time the Prime Rate
increases or decreases, then the rate of interest hereunder shall be
correspondingly increased or decreased effective on the day on which any such
increase or decrease of the Prime Rate changes, unless otherwise herein
provided. In the event that Bank of America, during the term hereof, shall
abolish or abandon the practice of establishing a Prime Rate, or should the
same become unascertainable, Bank of America shall designate a comparable
reference rate which shall be deemed to be the Prime Rate for purposes hereof.
For purposes hereof, the "LIBOR Rate" shall mean interest based on the
Eurodollar Daily Floating Rate. The Eurodollar Daily Floating Rate is a
floating rate of interest and will change on and as of the date of a change in
the Eurodollar Daily Floating Rate. The period of time during which the
Eurodollar Daily Floating Rate shall be applicable shall be a Eurodollar Daily
Floating Rate Interest Period. "Eurodollar Daily Floating Rate" shall mean the
fluctuating rate of interest equal to the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Telerate Page
3750 (or any successor page) as the one month London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) on the second
preceding Business Day, as adjusted from time to time in Bank's sole discretion
for then applicable reserve requirements, deposit insurance assessment rates
and other regulatory costs. If for any reason such rate is not available, the
term "Eurodollar Daily Floating Rate" shall mean the fluctuating rate of
interest equal to the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the one month London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) on the second preceding Business Day, as
adjusted from time to time in Bank's sole discretion for then applicable
reserve requirements, deposit insurance assessment rates and other regulatory
costs; provided, however, if more than one rate is specified on Telerate Page
3750 or on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all rates on that page.
Interest hereunder shall be calculated based upon a 360 day year and
actual days elapsed. The interest rate required hereby shall not exceed the
maximum rate permissible under applicable law, and any amounts paid in excess
of such rate shall be applied to reduce the principal amount hereof or shall be
refunded to Maker, at the option of the holder of this Note.
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All amounts due under this Note are payable at par in lawful money of
the United States of America, at the principal place of business of Payee in
Nashville, Tennessee, or at such other address as the Payee or other holder
hereof (herein "Holder") may direct.
Any payment not made within fifteen (15) days of its due date will be
subject to assessment of a late charge equal to five percent (5%) of such
payment. Xxxxxx's right to impose a late charge does not evidence a grace
period for the making of payments hereunder.
The occurrence of any of the following shall constitute an event of
default under this Note: (a) the failure of Maker to timely pay any amount due
Holder under this Note or any other obligation to Holder if such failure
continues for ten (10) days after notice of nonpayment from Holder to Maker
provided, however, that should Holder give Maker a notice of nonpayment, then
for the twelve month period following such notice of nonpayment, Holder shall
not be required to give Maker notice of nonpayment and Maker will be in default
if it fails to make a monetary payment within ten (10) days of the due date;
(b) the institution of proceedings by Maker under any state insolvency law or
under any federal bankruptcy law; (c) the institution of proceedings against
Maker under any state insolvency law or under any federal bankruptcy law, if
such proceedings are not dismissed within sixty (60) days; (d) Maker's becoming
insolvent or generally failing to pay its debts as they become due; (e) the
discovery by Holder that Maker has made a material misrepresentation of
financial condition in any written statement made to any present or previous
Holder which remains uncured for thirty (30) days; (f) the instigation of legal
proceedings against Maker for the violation of a material criminal statute; (g)
the issuance of an attachment against property of Maker unless removed, by bond
or otherwise, within ten (10) days; (h) the entry of a judgment against Maker
that remains unsatisfied for thirty (30) days after execution may first issue;
(i) Maker's liquidation or cessation of business; (j) the occurrence of a
default under the terms of any loan agreement, security agreement, deed of
trust, or similar document to which Maker is a party or to which any property
securing this Note is subject which results in the acceleration of an
indebtedness of One Hundred Thousand and 00/100 Dollars ($100,000.00) or more;
or (k) the occurrence of any of the foregoing with regard to any surety,
guarantor, endorser, or other person or entity primarily or secondarily liable
for the payment of the indebtedness evidenced by this Note.
Upon the occurrence of an event of default, as defined above, Holder
may, at its option and without notice, terminate any obligation to advance
funds under this Note, declare all principal and interest provided for under
this Note, and any other obligations of Maker to Holder, to be presently due
and payable, and Holder may enforce any remedies available to Holder under any
documents securing or evidencing debts of Maker to Holder. Holder may waive any
default before or after it occurs and may restore this Note in full effect
without impairing the right to declare it due for a subsequent default, this
right being a continuing one. Upon default, at Xxxxxx's election, the remaining
unpaid principal balance of the indebtedness evidenced hereby and all expenses
due Holder shall bear interest at the interest rate in effect immediately
before the default plus three percent (3%).
All amounts received for payment of this Note shall be first applied
to any expenses due Holder under this Note or under any other documents
evidencing or securing obligations of Maker to
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Xxxxxx, then to accrued interest, and finally to the reduction of principal.
Prepayment of principal or accrued interest may be made, in whole or in part,
at any time without penalty. Any prepayment(s) shall reduce the final
payment(s) and shall not reduce or defer installments next due.
This Note may be freely transferred by Holder.
Maker and all sureties, guarantors, endorsers and other parties to
this instrument hereby consent to any and all renewals, waivers, modifications,
or extensions of time (of any duration) that may be granted by Holder with
respect to this Note and severally waive demand, presentment, protest, notice
of dishonor, and all other notices that might otherwise be required by law. All
parties hereto waive the defense of impairment of collateral and all other
defenses of suretyship.
Maker's performance under this Note is unsecured. There will be a
negative pledge on existing unencumbered assets, as further described in the
Loan Agreement.
Maker and all sureties, guarantors, endorsers and other parties hereto
agree to pay reasonable attorneys' fees and all court and other costs that
Holder may incur in the course of efforts to collect the debt evidenced hereby
or to protect Xxxxxx's interest in any collateral securing the same.
The validity and construction of this Note shall be determined
according to the laws of Tennessee applicable to contracts executed and
performed within that state. If any provision of this Note should for any
reason be invalid or unenforceable, the remaining provisions hereof shall
remain in full effect.
The provisions of this Note may be amended or waived only by
instrument in writing signed by the Holder and Maker and attached to this Note.
Any controversy or claim between or among the parties to this Note or
any related loan or collateral agreements or instruments (collectively, "Loan
Documents"), including any claim based on or arising from an alleged tort,
shall be determined by binding arbitration in accordance with the Federal
Arbitration Act (or if not applicable, the applicable state law), the Rules of
Practice and Procedure for the arbitration of commercial disputes of Judicial
Arbitration and Mediation Services, Inc. (J.A.M.S.), and the "special rules"
set forth below. In the event of any inconsistency, the special rules shall
control. Judgment upon any arbitration award may be entered in any court having
jurisdiction. Any party to the Loan Documents may bring an action, including a
summary or expedited proceeding, to compel arbitration of any controversy or
claim to which this agreement applies in any court having jurisdiction over
such action.
The following "Special Rules" shall apply. The arbitration shall be
conducted in Nashville, Tennessee and administered by J.A.M.S. who will appoint
an arbitrator; if J.A.M.S. is unable or legally precluded from administering
the arbitration, then the American Arbitration Association will serve. All
arbitration hearings will be commenced within 90 days of the demand for
arbitration; further, the arbitrator shall only, upon a showing of cause, be
permitted to extend the commencement of such hearing for up to an additional 60
days.
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Nothing in foregoing arbitration shall be deemed to (i) limit the
applicability of any otherwise applicable statutes of limitation or repose and
any waivers contained in the Loan Documents; or (ii) be a waiver by Bank of
America of the protection afforded to it by 12 U.S.C. Sec. 91 or any
substantially equivalent state law; or (iii) limit the rights of Bank of
America under the Loan Documents (a) to exercise self help remedies such as
(but not limited to) set-off, or (b) to foreclose against any real or personal
property collateral, or (c) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief, possession of
collateral or the appointment of a receiver. Bank of America may exercise such
self help rights, foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any arbitration
proceeding brought pursuant to the Loan Documents. At Bank of America's option,
foreclosure under a deed of trust or mortgage may be accomplished by any of the
following: the exercise of a power of sale under the deed of trust or mortgage,
or by judicial sale under the deed of trust or mortgage, or by judicial
foreclosure. Neither this exercise or self help remedies nor the institution or
maintenance of an action for foreclosure or provisional or ancillary remedies
shall constitute a waiver of the right of any party, including the claimant in
any such action, to arbitrate the merits of the controversy or claim
occasioning resort to such remedies.
Words used herein indicating gender or number shall be read as context
may require.
X. XXXXXXXXX'X CORPORATION
(f/k/a VOLUNTEER CAPITAL CORPORATION)
By: /s/ X. Xxxxxxx Xxxxx
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Title: Vice President and Chief
Financial Officer
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X. XXXXXXXXX'X RESTAURANTS, INC.
(f/k/a TOTAL QUALITY MANAGEMENT, INC.)
By: /s/ X. Xxxxxxx Xxxxx
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Title: Vice President - Finance
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