EXHIBIT 10.6
[LOGO] Western Financial Bank
PROMISSORY NOTE
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Principal Loan Date Maturity Loan No Call Collateral Account Officer Initials
$2,000,000.00 12-12-2000 12-11-2001 9001 4a0 3100 0001910 00905 /s/ Illegible
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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.
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Borrower: Fresh Enterprises, Inc.; ET. AL. Lender: Western Financial Bank
225 W. Hillcrest Drive, Suite 351 Commercial Banking Group
Thousand Oaks, CA 91360 15750 Alton Parkway
Irvine, CA 92618
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Principal Amount: $2,000,000.00 Initial Rate: 9.750% Date of Note: December 12, 2000
PROMISE TO PAY. Fresh Enterprises, Inc. and Baja Fresh Westlake Village, Inc.,
dba Baja Fresh Mexican Grill (referred to in this Note individually and
collectively as ."Borrower") jointly and severally promise to pay to Western
Financial Bank ("Lender"), or order, in lawful money of the United States of
America, the principal amount of Two Million & 00/100 Dollars ($2,000,000.00) or
so much as may be outstanding, together with interest on the unpaid outstanding
principal balance of each advance. Interest shall be calculated from the date of
each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan in one payment of all outstanding principal
plus all accrued unpaid interest on December 11, 2001. In addition, Borrower
will pay regular monthly payments of accrued unpaid interest beginning January
1, 2001, and all subsequent interest payments are due on the same day of each
month after that. 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 Lender's address shown above or at such other place as Lender may
designate in writing. Unless otherwise agreed or required by applicable law,
payments will be applied first to accrued unpaid interest, then to principal,
and any remaining amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an independent index which is the Prime rate as
published in the Wall Street Journal. When a range of rates is published the
higher rate will be used (the "Index"). The index is not necessarily the lowest
rate charged by Lender on its loans. If the Index becomes unavailable during the
term of this loan, Lender may designate a substitute index after notice to
Borrower. Lender will tell Borrower the current Index rate upon Borrower's
request. Borrower understands that Lender may make loans based on other rates as
well. The interest rate change will not occur more often than each Day. The
index currently is 9.500%. The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 0.250 percentage points over
the index, resulting in an initial rate of 9.750%. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
PREPAYMENT; MINIMUM INTEREST CHARGE. In any event, even upon full prepayment of
this Note, Borrower understands that Lender is entitled to a minimum interest
charge of $99.99. Other than Borrower's obligation to pay any minimum interest
charge, Borrower may pay without penalty all or a portion of the amount owed
earlier than it is due. Early payments will not, unless agreed to by Lender in
writing, relieve Borrower of Borrower's obligation to continue to make payments
of accrued unpaid interest. Rather, they will reduce the principal balance due.
LATE CHARGE. If a payment is 10 days or more late, Borrower will be charged
5.000% of the unpaid portion of the regularly scheduled payment or $20.00,
whichever is greater.
DEFAULT. Borrower will be in default/(A)
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on this Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon Borrower's failure to pay
all amounts declared due pursuant to this section, including failure to pay upon
final maturity, Lender, at its option, may also, if permitted under applicable
law, increase the variable interest rate on this Note to 4.250 percentage points
over the index. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Borrower also will pay Lender that amount. This includes,
subject to any limits under applicable law, Lender's attorneys' fees and
Lender's legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts to modify
or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Borrower also will pay any court costs, in
addition to all other sums provided by law. This Note has been delivered to
Lender and accepted by Lender in the State of California. If there is a lawsuit,
Borrower agrees upon Lender's request to submit to the jurisdiction of the
courts of Orange County, the State of California. Lender and Borrower hereby
waive the right to any jury trial in any action, proceeding, or counterclaim
brought by either Lender or Borrower against the other. Subject to the
provisions on arbitration, this Note shall be governed by and construed in
accordance with the laws of the State of California.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $15.00 if Borrower
makes a payment on Borrower's loan and the check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in,
and hereby assigns, conveys, delivers, pledges, and transfers to Lender all
Borrower's right, title and interest in and to, Borrower's accounts with Lender
(whether checking, savings, or some other account), including without limitation
all accounts held jointly with someone else and all accounts Borrower may open
in the future, excluding however all IRA and Keogh accounts, and all trust
accounts for which the grant of a security interest would be prohibited by law.
Borrower authorizes Lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on this Note against any and all such accounts.
LINE OF CREDIT. This note evidences, a revolving line of credit. Advances under
this Note may be requested either orally or in writing by Borrower or as
provided in this paragraph. Lender may, but need not, require that all oral
requests be confirmed in writing. All communications, instructions, or
directions by telephone or otherwise to Lender are to be directed to Lender's
office shown above. The following party or parties are authorized as provided in
this paragraph to request advances under the line of credit until Lender
receives from Borrower at Lender's address shown above written notice of
revocation of their authority: Greg Dollarhyde and Donald Breen. Any one (1) of
the authorized parties may request advances under this line of credit. Borrower
agrees to be liable for all sums either: (a) advanced in accordance with the
instructions of an authorized person or (b) credited to any of Borrower's
accounts with Lender. The unpaid principal balance owing on this Note at any
time may be evidenced by endorsements on this Note or by Lender's internal
records, including daily computer print-outs. Lender will have no obligation to
advance funds under this Note if: (a) Borrower or any guarantor is in default
under the terms of this Note or any agreement that Borrower or any guarantor has
with Lender, including any agreement made in connection with the signing of this
Note; (b) Borrower or any guarantor ceases doing business or is insolvent; (c)
any guarantor seeks, claims or otherwise attempts to limit, modify or revoke
such guarantor's guarantee of this Note or any other loan with Lender; or (d)
Borrower has applied funds provided pursuant to this Note for purposes other
than those authorized by Lender.
ARBITRATION. Lender and Borrower agree that all disputes, claims and
controversies between them, whether individual, joint, or class in nature,
arising from this Note or otherwise, including without limitation contract and
tort disputes, shall be arbitrated pursuant to the Rules of the American
Arbitration Association, upon request of either party. No act to take or dispose
of any collateral securing this Note shall constitute a waiver of this
arbitration agreement or be prohibited by this arbitration agreement. This
includes, without limitation, obtaining injunctive relief or a temporary
restraining order; invoking a power of sale under any deed of trust or mortgage;
obtaining a writ of attachment or imposition of a receiver; or exercising any
rights relating to personal property, including taking or disposing of such
property with or without judicial process pursuant to Article 9 of the Uniform
Commercial Code. Any disputes, claims, or controversies concerning the
lawfulness or reasonableness of any act, or exercise of any right, concerning
any collateral securing this Note, including any claim to rescind, reform, or
otherwise modify any agreement relating to the collateral securing this Note,
shall also be arbitrated, provided however that no arbitrator shall have the
right or the power to enjoin or restrain any act of any party. Lender and
Borrower agree that in the event of an action for judicial foreclosure pursuant
to California Code of Civil Procedure Section 726, or
12-12-2000 PROMISSORY NOTE Page 2
Loan No 9001 (Continued)
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any similar provision in any other state, the commencement of such an action
will not constitute a waiver of the right to arbitrate and the court shall refer
to arbitration as much of such action, including counterclaims, as lawfully may
be referred to arbitration. Judgment upon any award rendered by any arbitrator
may be entered in any court having jurisdiction. Nothing in this Note shall
preclude any party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches, and similar
doctrines which would otherwise be applicable in an action brought by a party
shall be applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of an action for these
purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
ANNUAL CLEAN-UP PERIOD. Borrower agrees to maintain a consecutive thirty (30)
day period during which there is no outstanding balance on this line of credit,
during the term of this Note.
ANNUAL RENEWAL OF LINE OF CREDIT. Renewal of this revolving line of credit will
be considered on an annual basis, so long as Borrower remains in compliance with
all terms and conditions of it's credit facilities and no material adverse
change has occurred in Borrower's financial position. Various terms and
conditions, including financial covenants, will be updated each year to reflect
Borrower's then current position.
RIDERS. All changes contained herein are included on the attached Exhibit "X".
GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or
remedies under this Note without losing them. Each Borrower understands and
agrees that, with or without notice to Borrower, Lender may with respect to any
other Borrower (a) make one or more additional secured or unsecured loans or
otherwise extend additional credit; (b) alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms any indebtedness, including increases and decreases of the rate of
interest on the indebtedness; (c) exchange, enforce, waive, subordinate, fail or
decide not to perfect, and release any security, with or without the
substitution of new collateral; (d) apply such security and direct the order or
manner of sale thereof, including without limitation, any nonjudicial sale
permitted by the terms of the controlling security agreements, as Lender in its
discretion may determine; (e) release, substitute, agree not to sue, or deal
with any one or more of Borrower's sureties, endorsers, or other guarantors on
any terms or in any manner Lender may choose; and (f) determine how, when and
what application of payments and credits shall be made on any other indebtedness
owing by such other borrower. Borrower and any other person who signs,
guarantees or endorses this Note, to the extent allowed by law, waive any
applicable statute of limitations, presentment, demand for payment, protest and
notice of dishonor. Upon any change in the terms of this Note, and unless
otherwise expressly stated in writing, no party who signs this Note, whether as
maker, guarantor, accommodation maker or endorser, shall be released from
liability. All such parties agree that Lender may renew or extend (repeatedly
and for any length of time) this loan, or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect Lender's security
interest in the collateral; and take any other action deemed necessary by Lender
without the consent of or notice to anyone. All such parties also agree that
Lender may modify this loan without the consent of or notice to anyone other
than the party with whom the modification is made. The obligations under this
Note are joint and several.
PRIOR TO SIGNING THIS NOTE, EACH BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS
OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. EACH BORROWER
AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF
THE NOTE.
BORROWER:
Fresh Enterprises Inc.
By:/s/ Greg Dollarhyde
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Greg Dollarhyde, President & CEO
By:/s/ Donald Breen
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Donald Breen, Senior Vice President & CFO
Baja Fresh Westlake Village, Inc., dba Baja Fresh Mexican Grill Co-Borrower
By:/s/ Greg Dollarhyde
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Greg Dollarhyde, President & CEO
By:/s/ Donald Breen
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Donald Breen, Senior Vice President & CFO
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EXHIBIT "X"
Riders to Promissory Note in the amount of $2,000,000.00 by and between Fresh
Enterprises, Inc. and Baja Fresh Westlake Village, Inc., dba Baja Fresh Mexican
Grill (individually and collectively "Borrower"), and Western Financial Bank
("Lender")
Rider (A):
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upon the occurrence and during the continuance of an "Event of Default" as
defined in the Business Loan Agreement dated December 12, 2000 between Borrower
and Lender
BORROWER:
Fresh Enterprises, Inc.
By:/s/ Greg Dollarhyde
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Greg Dollarhyde, President & CEO
By:/s/ Donald Breen
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Donald Breen, Senior Vice President & CFO
Baja Fresh Westlake Village, Inc., dba Baja Fresh Mexican Grill
By:/s/ Greg Dollarhyde
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Greg Dollarhyde, President & CEO
By:/s/ Donald Breen
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Donald Breen, Senoir Vice President & CFO
LENDER:
Western Financial Bank
By:/s/ Richard Wagner
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Authorized Officer
[LOGO] Western Financial Bank
CHANGES IN TERMS AGREEMENT
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Principal Loan Date Maturity Loan No Call / Coll Account Officer Initials
$2,000,000.00 09-27-2001 09-03-2002 9001 4A0 / 3100 0001910 00905 /s/ Illegible
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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.
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Borrower: Fresh Enterprises, Inc. Lender: Western Financial Bank
Baja Fresh Westlake Village, Inc. dba Baja Fresh Commercial Banking Group
Mexican Grill 15750 Alton Parkway
225 W. Hillcrest Drive, Suite 351 Irvine, CA 92618
Thousand Oaks, CA 91360
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Principal Amount: $2,000,000.00 Date of Agreement: September 27, 2001
DESCRIPTION OF EXISTING INDEBTEDNESS. Promissory Note in the original amount of
$2,000,000.00 dated December 12, 2000, with a current principal balance of
$196,850.33, along with all renewals, extensions and/or modifications.
DESCRIPTION OF CHANGE IN TERMS. Effective October 1, 2001, and only upon
verification by Lender of a $12,000,000.00 Preferred Stock Series C equity
contribution by Borrower's stockholders, the maturity date shall be extended to
September 30, 2002.
CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of
the original obligation or obligations, including all agreements evidenced or
securing the obligation(s), remain unchanged and In full force and effect.
Consent by Lender to this Agreement does not waive Lender's right to strict
performance of the obligation(s) as changed, nor obligate Lender to make any
future change in terms. Nothing in this Agreement will constitute a satisfaction
of the obligation(s). It is the intention of Lender to retain as liable parties
all makers and endorsers of the original obligation(s), including accommodation
parties, unless a party is expressly released by Lender in writing. Any maker or
endorser, including accommodation makers, will not be released by virtue of this
Agreement. If any person who signed the original obligation does not sign this
Agreement below, then all persons signing below acknowledge that this Agreement
is given conditionally, based on the representation to Lender that the
non-signing party consents to the changes and provisions of this Agreement or
otherwise will not be released by it. This waiver applies not only to any
initial extension, modification or release, but also to all such subsequent
actions.
BORROWER:
Fresh Enterprises, Inc.
By:/s/ Greg Dollarhyde By:/s/ Donald Breen
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Greg Dollarhyde, President & CEO of Fresh Donald Breen, Senior V.P. &
Enterprises, Inc. CFO of Fresh Enterprise, Inc.
Baja Fresh Westlake Village, Inc., Dba Baja Fresh Mexican Grill
By:/s/ Greg Dollarhyde By:/s/ Donald Breen
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Greg Dollarhyde, President & CEO of Baja Donald Breen, Senior V.P. &
Fresh Westlake Village, Inc. dba Baja CFO of Baja Fresh Westlake
Fresh Mexican Grill Village, Inc. dba Baja Fresh
Mexican Grill
LENDER:
Western Financial Bank
By:/s/ Richard Wagner
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Authorized Signer
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