Exhibit 4(e)
PROMISSORY NOTE
Dallas, Texas November 15, 1994
Borrower: LUBY'S CAFETERIAS, INC.
Maximum Amount: $9,000,000.00
Interest Rate Options (check options available):
X Agreed Rate
__
x Prime Rate .50%
__ ____
x CD Rate + .50%
__ ____
x Eurodollar Rate + .375%
__ ____
Loan Type (Check only one option):
This Note evidences Loans made by Lender to Borrower
pursuant to a line of credit in the Maximum Amount. From the
date hereof to _______________________, 19___ (the
"Commitment Termination Date"), Borrower, subject to the
terms and conditions of this Note and provided that no Event
of Default is then existing, may borrow, repay and reborrow
up to the Maximum Amount ("Committed Loans").
x This Note evidences Loans made by Lender to Borrower,
which in the aggregate principal amount outstanding shall
not exceed the Maximum Amount. Each Loan evidenced hereby
shall mature within one year from the date hereof. Borrower
acknowledges and agrees that (i) Lender has no obligation to
make any Loans and (ii) each Loan shall be in the sole
discretion of Lender ("Uncommitted Loans").
Borrower, for the value received, promises to pay to the order of
NATIONSBANK OF TEXAS, N.A. ("Lender"), at its banking house in Dallas, Texas,
or at any other place designated to Borrower in writing by Lender, in lawful
money of the United States of America and in immediately available funds prior
to 11:00 a.m. Dallas time on the date due, the principal amount of each Loan,
on the earlier of (i) declaration by Lender pursuant to Section 1.7 hereof, or
(ii) the last day of the Interest Period of such Loan, together with interest
on the unpaid principal balance of such Loan at the applicable rates herein
set forth.
This Note is issued upon the following terms and conditions:
ARTICLE I.
THE LOANS
1.1. Definitions. Defined terms used herein shall have the meanings
given to them above and in Article III hereof.
1.2. Making the Loans. Each Fixed Rate Loan shall be in an aggregate
amount which is an integral multiple of $100,000.00. Each Loan shall be made
by notice to Lender (stating the Type Loan, the amount of the Loan, the date
of the Loan and the Interest Period for the Loan) not later than 11:30 a.m.,
Dallas time, given by Borrower to Lender (i) as to any Eurodollar Rate Loan,
at least two (2) Business Days prior to the date of such Type Loan, (ii) as to
any CD Rate Loan, at least one (1) Business Day prior to the date of such Type
Loan, and (iii) as to any Agreed Rate Loan and any Prime Rate Loan, on the day
of such Type Loan. Lender shall on the date of each Loan not later than 1:00
p.m., Dallas time, in immediately available funds, deposit the proceeds of
such Loan in the general deposit account of Borrower with Lender.
1.3. Repayment. Borrower shall repay the principal amount of each Loan
on the earlier of (i) declaration by Lender pursuant to Section 1.7 hereof, or
(ii) the last day of the Interest Period for such Loan.
1.4. Prepayments. Borrower may prepay any Prime Rate Loan, without
penalty or premium. No prepayment of any Fixed Rate Loan shall be permitted
without the prior written consent of Lender. Notwithstanding such prohibition,
if there is a prepayment of any Fixed Rate Loan, whether by consent of Lender
or because of acceleration or otherwise, Borrower shall, within fifteen (15)
days of any request by Lender, pay to Lender any loss or expense which Lender
may incur or sustain as a result of any such prepayment.
A statement as to the amount of such loss or expense, prepared in good
faith and in reasonable detail by Lender and submitted by Lender to Borrower
shall be conclusive and binding for all purposes absent manifest error in
computation. Calculation of all amounts payable to Lender under this Section
1.4 shall be made as though Lender shall have actually funded or committed to
fund the relevant Fixed Rate Loan through the purchase of an underlying
deposit in an amount equal to the amount of such Loan and having a maturity
comparable to the related Interest Period; provided, however, that Lender may
fund any Fixed Rate Loan in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section 1.4.
1.5. Yield Protection and Indemnity. If at any time after the date
hereof, and from time to time, Lender determines that the adoption or
modification of any applicable law, rule or regulation regarding taxation,
Lender's required levels of reserves, deposits, insurance or capital
(including any allocation of capital requirements or conditions), or similar
requirements, or any interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation, administration or compliance of Lender with any of such
requirements, has or would have the effect of (i) increasing Lender's costs
relating to the Obligation hereunder, or (ii) reducing the yield or rate of
return of Lender on the Obligation hereunder to a level below that which
Lender could have achieved but for the adoption or modification of any such
requirements, Borrower shall, within fifteen (15) days of any request by
Lender, pay to Lender such additional amounts as (in Lender's sole judgment,
after good faith and reasonable computation) will compensate Lender for such
increase in costs or reduction in yield or rate of return of Lender. No
failure by Lender to immediately demand payment of any additional amounts
payable hereunder shall constitute a waiver of Lender's right to demand
payment of such amounts at any subsequent time. Nothing herein contained shall
be construed or so operate as to require Borrower to pay any interest, fees,
costs or charges at a rate or in an amount greater than is permitted by
Applicable Law.
1.6. Interest.
(a) Prime Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a Prime Rate Loan shall bear interest during
each Interest Period at the Prime Rate plus the percentage, if any, set forth
in the 'Interest Rate Options' section of this Note, which interest rate shall
change without notice with each change in such Prime Rate as of the date of
any such change; provided that, if at any time the Prime Rate plus the
percentage, if any, set forth in the "Interest Rate Options" section of this
Note exceeds the Highest Lawful Rate, the rate of interest which each Prime
Rate Loan bears shall be limited to the Highest Lawful Rate, but any
subsequent reductions in the Prime Rate shall not reduce the rate of interest
which each Prime Rate Loan bears below the Highest Lawful Rate until the
amount of interest accrued on each Prime Rate Loan equals the amount of
interest which would have accrued if the Prime Rate plus the percentage, if
any, set forth in the "Interest Rate Options" section of this Note had at all
times been in effect. Interest on each Prime Rate Loan for each Interest
Period shall be payable on the last day thereof.
(b) CD Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a CD Rate Loan shall bear interest during
each Interest Period at the CD Rate for such CD Rate Loan plus the percentage,
if any, set forth in the "Interest Rate Options" section of this Note.
Interest on each CD Rate Loan for each Interest Period shall be payable on the
last day thereof.
(c) Eurodollar Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as a Eurodollar Rate Loan shall bear interest
during each Interest Period at the Eurodollar Rate for such Eurodollar Rate
Loan plus the percentage, if any, set forth in the "Interest Rate Options"
section of this Note. Interest on each Eurodollar Rate Loan for each Interest
Period shall be payable on the last day thereof.
(d) Agreed Rate Loans. The unpaid principal balance of each Loan
outstanding from time to time as an Agreed Rate Loan shall bear interest
during each Interest Period at the Agreed Rate for such Agreed Rate Loan.
Interest on each Agreed Rate Loan for each Interest Period shall be payable on
the last day thereof.
(e) Computations. Subject to the provisions of Section 2.5 of this
Note, interest on each Loan and any commitment fee shall be calculated on the
basis of actual days elapsed, but computed as if each year consisted of 360
days. The books and records of Lender shall be Prima facie evidence of all
sums due Lender.
(f) Past Due Principal and Interest. All past due principal of and,
to the extent permitted by Applicable Law, all past due interest on any Loan
and any other past due amount owing on this Note, shall bear interest from the
date due until paid at the Default Rate.
1.7. Events of Default. It shall be an event of default ("Event of
Default") under this Note and each of any other documents executed in
connection herewith if any one of the following shall occur: (i) Borrower
shall fail to make any payment of principal, interest or other amounts under
this Note when due; (ii) Borrower or any guarantor of this Note shall fail to
make any payment when due on any debt for borrowed money, purchase money debt
or contingent debt which Borrower or any guarantor of this Note is obligated
to pay as borrower, guarantor or in any other capacity or any default or event
of default shall occur under any agreement evidencing or providing for the
creation of such debt or under any other document executed in connection with
this Note; (iii) any voluntary or involuntary bankruptcy proceeding or any
similar action is commenced with respect to Borrower or any guarantor of this
Note or any of its assets; (iv) Lender shall in good faith believe that the
prospect of payment of amounts due with respect to this Note has been
impaired; or (v) any representation or warranty made by Borrower or any
guarantor of this Note in connection with this Note shall be false or
incorrect in any material respect when made or deemed made.
If one or more of the foregoing Events of Default shall occur, all or
any part of the outstanding principal of this Note plus accrued unpaid
interest on this Note and any other accrued unpaid amount owing under this
Note shall at the option of Lender become due and payable immediately without
notice to Borrower, which is hereby waived by Borrower, and Lender shall have
no further obligation (if any) to make Loans under this Note, and Lender may
exercise any and all available rights and remedies under any document or
instrument executed in connection with this Note or under Applicable Law.
ARTICLE II.
MISCELLANEOUS
2.1. Waivers and Consents. Borrower and all endorsers, sureties and
guarantors of this Note hereby severally waive demand and notice of demand,
presentment for payment, protest, notice of protest, notice of acceleration of
the maturity of this Note, notice of intention to accelerate the maturity of
this Note, diligence in collecting, the bringing of any suit against any
Person, and any notice of or defense on account of any extensions, renewals,
partial payments or changes in this Note or in any of its terms, provisions
and covenants, or any releases or substitutions of any security for this Note,
or any delay, indulgence or other act of any holder hereof, whether before or
after maturity.
2.2 Fees. Borrower agrees to pay to Lender, on the date or dates set
forth below, the following fee or fees (check applicable provisions):
N/A On the date hereof, a facility fee in the amount of
_________________ Dollars ($_________________).
N/A On the last day of each Interest Period for Prime Rate Loans and
on the Commitment Termination Date, a commitment fee at the rate
of _______________ percent (_____%) per annum on the average daily
unborrowed portion of the Maximum Amount.
2.3. Expenses. If this Note is placed in the hands of an attorney for
collection after the occurrence of an Event of Default, or if all or any part
of the indebtedness evidenced hereby is proved, established or collected in
any court or in any bankruptcy, receivership, debtor relief, probate or other
court proceedings, Borrower and all endorsers, sureties and guarantors of this
Note jointly and severally agree to pay reasonable attorneys' fees and
collection costs to the holder hereof in addition to the principal and
interest and other amounts payable hereunder. In addition, Borrower agrees to
pay Lender all reasonable costs and expenses, including reasonable attorneys'
fees, incurred by Lender in connection with the preparation of this Note and
any documents or instruments executed in connection herewith, making the Loans
hereunder, and all amendments, consents and waivers related to the Loans and
requests therefor by Borrower.
2.4. Governing Law. This Note is payable and performable in Dallas
County, Texas, and shall be construed and enforced in accordance with and
governed by the Laws of the State of Texas and the Federal Laws of the United
States of America. Tex. Rev. Civ. Stat. Ann. art. 5069 Ch. 15 (which regulates
certain revolving credit loan accounts and revolving tri-party accounts) shall
not apply to the Loans evidenced by this Note. Without excluding any other
jurisdiction, Borrower agrees that the courts of the State of Texas sitting in
Dallas, Dallas County, Texas, and the federal courts sitting in Dallas, Dallas
County, Texas, will have jurisdiction over proceedings in connection herewith.
2.5. Controlling Agreement. Interest paid or agreed to be paid in this
Note or in any other documents executed in connection herewith shall not
exceed the Highest Lawful Rate, and, in any contingency whatsoever, if Lender
shall receive anything of value deemed interest under Applicable Law which
would exceed the Highest Lawful Rate, the excessive interest shall be applied
to the reduction of unpaid principal or refunded to Borrower, if it exceeds
unpaid principal. It is further agreed that, without limitation of the
foregoing, all calculations of the rate of interest contracted for, charged,
or received by Lender or any holder of this Note that are made for the purpose
of determining whether such rate exceeds the Highest Lawful Rate shall be
made, to the extent permitted by usury laws applicable to Lender (now or
hereafter enacted), by amortizing, prorating, and spreading during the period
of the full stated term of the Loans evidenced by this Note all interest at
any time contracted for, charged, or received by Lender in connection
therewith.
2.6. Binding Effect. This Note shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower shall not have the right to assign its rights or
obligations hereunder or any interest herein without the prior written consent
of Lender. Lender may assign to one or more banks, all or any part of, or may
grant participations to one or more banks in or to all or part of, any Loan or
Loans and this Note, and to the extent of any such assignment or participation
(except where otherwise stated) the assignee or participant of such assignment
or participation shall have the rights and benefits with respect to each Loan
or Loans and this Note, including Section 1.5 hereof, as it would have if it
was Lender hereunder.
2.7. Titles. The titles to paragraphs in this Note are inserted for
convenience only and do not constitute a part of the text hereof.
2.8. Notices. Notices hereunder must be given in writing to be
effective and shall be effective upon receipt by Borrower or Lender at the
address set forth below its signature below or at such other address as
Borrower or Lender may notify the other.
ARTICLE III
DEFINITIONS
As used in and for all purposes of this Note, the terms defined in this
Article III shall have the following meanings, and the singular shall include
the plural, and vice versa, unless otherwise specifically required by the
context:
"Agreed Rate" shall mean a fixed rate per annum mutually agreed upon by
Borrower and Lender, to be confirmed in writing by Borrower.
"Agreed Rate Loan" shall mean each Loan which bears interest at the
Agreed Rate.
"Applicable Law" shall mean the Laws of the United States of America
applicable to contracts made or performed or to be performed in the State of
Texas, including, without limitation, 12 U.S.C. SS 85 and 86(a), as heretofore
or hereafter amended, and any other statute of the United States of America
now or at any time hereafter prescribing maximum rates of interest on loans,
advances and extensions of credit, and the Laws of the State of Texas,
including, without limitation, Articles 5069-1.04 and 5069-1.07(a), Title 79,
Revised Civil Statutes of Texas, 1925, as heretofore or hereafter amended
("Art. 1.04").
"Art. 1.04" has the meaning given to such term in the definition of
Applicable Law in this Article III.
"Assessment Rate" shall mean, with respect to any CD Rate Loan, the
actual (if known) or the estimated (if the actual rate is not known) net
annual assessment rate (rounded upwards, if necessary, to the next higher
1/100 of 1%) charged by the Federal Deposit Insurance Corporation (or any
successor) for such corporation's (or such successor's) insuring liability for
time deposits of Lender, as in effect from time to time. The Assessment Rate
shall be a fixed percentage calculated as of and effective with the first day
of each Interest Period, taking into consideration changes scheduled to occur
during such Interest Period.
"Business Day" shall mean a day of the year on which banks are not
required or authorized to close in Dallas, Texas, and, if the applicable
Business Day relates to any Eurodollar Rate Loans, a day of the year on which
dealings are carried on in the London interbank market.
"CD Rate" shall mean an interest rate per annum equal to a rate
determined pursuant to the following formula:
Derivation CD Rate + Assessment Rate
___________________________________________________
100% - CD Reserve Percentage
"CD Rate Loan" shall mean each Loan which bears interest based on the CD
Rate.
"CD Reserve Percentage" shall mean, for the applicable Interest Period,
the then applicable maximum reserve requirement (including, without
limitation, any basic, supplemental, marginal and emergency reserves)
(expressed as a percentage) under Regulation D of the Board of Governors of
the Federal Reserve System, or such additional, substituted or amended reserve
requirement, applicable to member banks of the Federal Reserve System, in
respect of non-personal time deposits in Dollars in the City of Dallas, Texas,
having a maturity comparable to such Interest Period and in an amount of
$100,000.00 or more. The CD Reserve Percentage shall be a fixed percentage
calculated as of and effective with the first day of such Interest Period,
taking into consideration changes scheduled to occur during such Interest
Period.
"Default Rate" shall mean (i) from the date that any payment is due
until ten (10) days thereafter, an interest rate per annum equal to the lesser
of (y) two (2) percent above the interest rate otherwise applicable to such
payment or, if there is no otherwise applicable interest rate, two (2) percent
above the Prime Rate or (z) the Highest Lawful Rate and thereafter (ii) the
Highest Lawful Rate.
"Derivation CD Rate" shall mean, for the applicable Interest Period, the
rate per annum determined by Lender, in accordance with its customary general
practice from time to time, to be the rate that is or would be offered or
quoted to Lender at its request by one or more primary dealers who make
markets in certificates of deposit for the purchase at face value from Lender
of certificates of deposit issued by Lender in the amount of Five Million
Dollars ($5,000,000.00), having a term comparable to such Interest Period, as
of approximately 8:00 a.m. Dallas, Texas time (or as soon thereafter as
practicable) on the first day of such Interest Period. If no such offers or
quotes are generally available for such amount, then Lender shall be entitled
to determine the Derivation CD Rate by estimating in its reasonable judgment
the per annum rate (as described above) that would be applicable if such
quotes or offers were generally available.
"Dollars" and the sign shall mean lawful money of the United States of
America.
"Eurodollar Rate" shall mean an interest rate per annum equal to a rate
determined pursuant to the following formula:
London Interbank Rate
___________________________________
100% - Eurodollar Reserve Percentage
"Eurodollar Rate Loan" shall mean each Loan which bears interest based
on the Eurodollar Rate.
"Eurodollar Reserve Percentage" shall mean the maximum reserve
requirement (including, without limitation, any basic, supplemental, marginal
and emergency reserves) (expressed as a percentage) applicable to member banks
of the Federal Reserve System in respect of "Eurocurrency Liabilities" under
Regulation D of the Board of Governors of the Federal Reserve System, or such
additional, substituted or amended reserve requirement as may be hereafter
applicable to member banks of the Federal Reserve System.
"Fixed Rate Loan" shall mean an Agreed Rate Loan, CD Rate Loan, or
Eurodollar Rate Loan, as the context requires.
"hereof," "hereto," "hereunder" and similar terms shall refer to this
Note and not to any particular section or provision of this Note.
"Highest Lawful Rate" shall mean at the particular time in
question the maximum rate of interest per annum which, under Applicable Law,
Lender is then permitted to charge Borrower on the Obligation. If the Highest
Lawful Rate shall change after the date hereof, the Highest Lawful Rate shall
be automatically increased or decreased, as the case may be, from time to time
as of the effective time of each change in the Highest Lawful Rate without
notice to Borrower; provided, however, the Highest Lawful Rate shall decrease
with respect to the Note only if required by Applicable Law. For purposes of
determining the Highest Lawful Rate under the Applicable Law of the State of
Texas, the applicable rate ceiling shall be the indicated rate ceiling
described in and computed in accordance with the provisions of Section (a)(1)
of Art. 1.04, provided, that at any time such indicated rate ceiling shall be
less than 18% per annum or more than 24% per annum, the provisions of Section
(b)(1) and (2) of Art. 1.04 shall control for purposes of such determination,
as applicable.
"Interest Period" means, for each Loan, the period commencing on the
date of such Loan and ending on the last day of such period as selected by
Borrower pursuant to the provisions hereof. The duration of each such Interest
Period for (i) each Eurodollar Rate Loan shall be 1, 2 or 3 months, (ii) each
CD Rate Loan shall be 30, 60 or 90 days, (iii) each Prime Rate Loan shall be
from the date of such Prime Rate Loan to the next succeeding April 1, July 1,
October 1 or January 1, and (iv) each Agreed Rate Loan shall be up to 30 days
as agreed to by Borrower and Lender and confirmed in writing by Borrower,
subject to the other provisions hereof, as Borrower may select: provided
however, that:
(i) Whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business
Day, provided, in the case of any Interest Period for a Eurodollar
Rate Loan, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the next preceding
Business Day; and
(ii) No Interest Period may end after January 31, 1995.
"Laws" shall mean all constitutions, treaties, statutes, laws,
ordinances, regulations, orders, writs, injunctions, or decrees of the United
States, any state or commonwealth, any municipality, any foreign country, any
territory or possession or any Tribunal.
"Loan" shall mean any Prime Rate Loan, Agreed Rate Loan, CD Rate Loan or
Eurodollar Rate Loan, as the context requires.
"London Interbank Rate" shall mean, for the applicable Interest Period,
the rate of interest per annum (rounded upward, if necessary, to the next
higher 1/16 of 1%) determined by Lender, in accordance with its customary
general practice from time to time, to be the rate at which deposits in
immediately available funds in Dollars are or would be offered or quoted by
Lender to major banks in the London interbank market, as of approximately
11:00 a.m. London time, or as soon thereafter as practicable, on the second
Business Day immediately preceding the first day of such Interest Period, for
a term comparable to such Interest Period and in the amount of Five Million
Dollars ($5,000,000.00). If no such offers or quotes are generally available
for such amount, then Lender shall be entitled to determine the London
Interbank Rate by estimating in its reasonable judgment the per annum rate (as
described above) that would be applicable if such quotes or offers were
generally available.
"Obligation" shall mean (without duplication) the aggregate principal
amount of and any interest, fees, and other charges payable by Borrower in
respect of the Loans.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization and a
government or any department, agency or political subdivision thereof.
"Prime Rate" shall mean the prime interest rate charged by Lender as
announced or published by Lender from time to time. It is understood that the
Prime Rate is set by Lender as a general reference rate of interest and is not
necessarily the lowest or best rate actually charged to any customer or a
favored rate.
"Prime Rate Loan" shall mean each Loan which bears interest based on the
Prime Rate.
"Taxes" shall mean all taxes, assessments, fees or other charges from
time to time or at any time imposed by any Laws or by any Tribunal.
"Tribunal" shall mean any state, commonwealth, federal foreign,
territorial, or other court or governmental department, commission, board,
bureau, district, agency or instrumentality.
"Type Loan" shall mean with respect to the Loan, a Prime Rate Loan,
Agreed Rate Loan, CD Rate Loan, or a Eurodollar Rate Loan.
NOTICE OF FINAL AGREEMENT, THIS WRITTEN PROMISSORY NOTE AND ANY
OTHER DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES, THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
BORROWER: BORROWER:
LUBY'S CAFETERIAS, INC. LUBY'S CAFETERIAS, INC.
By: Ralph Erben By: John E. Curtis, Jr.
Name: Ralph Erben Name: John E. Curtis, Jr.
Title: President and CEO Title: Senior Vice President, CFO and Treasurer
Executed by Lender for the purpose of the Notice of Final Agreement set forth
above.
LENDER:
NATIONSBANK OF TEXAS, N.A.
By: Doug Hutt
Name: Doug Hutt
Title: Senior Vice President