EXHIBIT 10.1
PROMISSORY NOTE
$4,000,000.00 Dated as of March 27, 2001
Scottsdale, Arizona
MORTON'S OF CHICAGO/GREAT NECK LLC, a Delaware limited liability company
("Debtor"), for value received, hereby promises to pay to FFCA ACQUISITION
CORPORATION, a Delaware corporation ("FFCA"), whose address is 17207 North
Perimeter Drive, Scottsdale, Arizona 85255, or order, on or before April 1,
2021 (the "Maturity Date"), as herein provided, the principal sum of FOUR
MILLION AND 00/100 DOLLARS ($4,000,000.00), and to pay interest on the unpaid
principal amount of this Note from the date hereof to the Maturity Date at
the rate of 8.98% per annum on the basis of a 360-day year for the actual
number of days elapsed, such principal and interest to be paid in immediately
available funds and in lawful money of the United States.
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 hereof between Debtor and FFCA, as such agreement may be amended
from time to time (the "Loan Agreement").
Interest on the principal amount of this Note for the period
commencing with the date set forth above through the last day in the month in
which this Note is dated shall be due and payable upon delivery of this Note.
Thereafter, principal and interest shall be payable in consecutive monthly
installments of THIRTY-SIX THOUSAND TWO HUNDRED SEVENTY-SIX AND 96/100
DOLLARS ($36,276.96) commencing on May 1, 2001, and continuing on the first
day of each month thereafter until the Maturity Date, at which time, the
outstanding principal and unpaid accrued interest shall be due and payable.
Debtor may prepay this Note in full, but not in part, including all
accrued but unpaid interest hereunder and all sums advanced by FFCA pursuant
to the Loan Documents which secure this Note, provided that (i) an Event of
Default shall not have occurred under this Note and be not continuing,
(ii) any such prepayment shall only be made on a regularly scheduled payment
date upon not less than 30 days prior written notice from Debtor to FFCA, and
(iii) any such prepayment shall be made together with payment of a prepayment
premium equal to the Yield Maintenance Amount. The term "Yield Maintenance
Amount" means an amount equal to the difference between (i) the present value
computed at the Reinvestment Rate of the stream of monthly principal and
interest payments due under this Note from the date of such prepayment
through the scheduled Maturity Date, and (ii) the unpaid principal amount of
this Note; provided, however, if such difference is a negative number, the
Yield Maintenance Amount shall be zero. The term "Reinvestment Rate" means an
interest rate equal to the then current yield of U.S. Treasury securities
having a weighted average life to maturity closest to the scheduled Maturity
Date of this Note.
The foregoing Yield Maintenance Amount shall be due and payable if
this Note is prepaid regardless of whether such prepayment is the result of a
voluntary prepayment by Debtor
or as a result of FFCA declaring the unpaid principal balance of this Note,
accrued interest and all other sums due under this Note, the Mortgage
encumbering the Premises corresponding to this Note and the other Loan
Documents, due and payable as contemplated below (the "Acceleration");
provided, however, the prohibition on prepayment and the Yield Maintenance
Amount or prepayment premium, as applicable, shall not be applicable with
respect to a prepayment of this Note in connection with (a) an application of
condemnation or insurance proceeds as contemplated by the Mortgage, (b) a
prepayment as a result of a breach and subsequent cure by Debtor of the Fixed
Charge Coverage Ratio required by the Loan Agreement or (c) a prepayment
under the last sentence of Section 3.10(a) of the Mortgage.
Upon execution of this Note, Debtor shall establish arrangements
whereby all payments of principal and interest hereunder are transferred by
Automated Clearing House Debit directly from Debtor's bank account to such
account as FFCA may designate or as FFCA 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, 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 under this Note shall be applied as FFCA in
its sole discretion may determine.
This Note is secured by the Mortgage and guaranteed by the Guarantor
pursuant to the Guaranty. An "Event of Default" shall be deemed to have
occurred under this Note if (a) any principal, interest or other monetary sum
certain due under this Note is not paid within five days after the date when
due and FFCA shall have given Debtor notice thereof and a period of seven
days from the delivery of such notice shall have elapsed without past-due sum
being paid, or (b) an Event of Default (as defined under any of the Loan
Documents).
During the continuation of an Event of Default under this Note, then,
time being of the essence hereof, FFCA 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 which secure this Note, due and payable at
once without notice to Debtor.
All past-due principal and/or interest shall bear interest from the
due date to the date of actual payment at the lesser of the highest rate for
which the undersigned may legally contract, or the rate of 15% per annum (the
"Default Rate"), and such Default Rate shall continue to apply following a
judgement in favor of FFCA under this Note; provided, however, the Default
Rate shall not be applicable if all past due principal and/or interest is
paid in full within the notice and cure periods provided for in the Loan
Agreement.
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 Debtor,
and (ii) without any other right of abatement, reduction, setoff, defense,
counterclaim, interruption, deferment or recoupment for any reason
whatsoever. Debtor will pay the amounts necessary (such amounts are hereby
deemed not to include income taxes,
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gross receipts taxes, transfer taxes, franchise taxes and corporate taxes)
such that the gross amount of the principal and interest received by FFCA is
not less than required by this Note.
No delay or omission on the part of FFCA 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.
Debtor 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 in
writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon
(a) receipt, if hand delivered, (b) transmission, if delivered by facsimile,
(c) the next business day, if delivered by express overnight delivery service,
or (d) the third business day following the day of deposit of such notice with
the United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
If to Debtor: Mr. Thomas Baldwin
Morton's of Chicago/Great Neck LLC
3333 New Hyde Park Road
New Hyde Park, NY 11042
Telephone: (516)627-1515
Telecopy: (516)627-2050
with a copy to: David Gruber, Esq.
Salamon, Gruber, Newman and Blaymore
Suite 102
97 Powerhouse Road
Roslyn Heights, NY 11577
Telephone: (516)625-1700
Telecopy: (516)625-1795
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If to FFCA: Dennis L. Ruben, Esq.
Executive Vice President, General
Counsel and Secretary
FFCA Acquisition Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (480)585-4500
Telecopy: (480)585-2226
or to such other address or such other person as either party may from time
to time hereafter specify to the other party in a notice delivered in the
manner provided above.
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, Debtor 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 attorney's fees and expenses of FFCA (including those
fees and expenses incurred in connection with any appeal and those of FFCA's
in-house counsel) whether or not a judicial action is commenced by FFCA.
This Note may not be amended or modified except by a written agreement
duly executed by Debtor and FFCA. In case 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.
Notwithstanding anything to the contrary contained in any of the Loan
Documents, the obligations of Debtor to FFCA under this Note and any other
Loan Documents are subject to the limitation that payments of interest and
late charges to FFCA shall not be required to the extent that receipt of
any such payment by FFCA would be contrary to provisions of applicable law
limiting the maximum rate of interest that may be charged or collected by
FFCA. The portion of any such payment received by FFCA 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 express portion exceeds the
outstanding principal balance of this Note, then such excess portion shall be
refunded to Debtor. All interest paid or agreed to be paid to FFCA 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.
It is the intent of the parties hereto that the business relationship
created by this Note and the other Loan Documents is solely that of creditor
and debtor and has been entered into by both parties in reliance upon the
economic and legal bargains contained in the Loan Documents. None of the
agreements contained in the Loan Documents is intended, nor shall the same be
deemed or construed, to create a partnership between FFCA and Debtor, to make
them joint
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ventures, to make Debtor an agent, legal representative, partner, subsidiary
or employee of FFCA, nor to make FFCA in any way responsible for the debts,
obligations or losses of Debtor.
FFCA, by accepting this Note, and Debtor acknowledge and warrant to each
other that each has been represented by independent counsel and Debtor has
executed this Note after being fully advised by said counsel as to its effect
and significance. This Note shall be interpreted and construed in a fair and
impartial manner without regard to such factors as the party which prepared
the instrument, the relative bargaining powers of the parties or the domicile
of any party.
Time is of the essence in the performance of each and every obligation
under this Note.
Debtor acknowledges that this Note was substantially negotiated in the
State of Arizona, the executed Note was delivered in the State of Arizona,
all payments under this Note will be delivered in the State of Arizona and
there are substantial contacts between the parties and the transactions
contemplated herein and the State of Arizona. For purposes of any action or
proceeding arising out of this Note, the parties hereto expressly submit to
the jurisdiction of all federal and state courts located in the State of
Arizona. Debtor consents that it may be served with any process or paper by
registered mail or by personal service within or without the State of Arizona
in accordance with applicable law. Furthermore, Debtor waives and agrees not
to assert in any such action, suit or proceeding that it is not personally
subject to the jurisdiction of such courts, that the action, suit or
proceeding is brought in an inconvenient forum or that venue of the action,
suit or proceeding is improper. It is the intent of Debtor and FFCA that all
provisions of this Note shall be governed by and construed under the laws of
the State of Arizona, without regard to its conflict of laws principles.
Nothing contained in this paragraph shall limit or restrict the right of FFCA
to commence any proceeding in the federal or state courts located in the
state in which the Premises is located to the extent FFCA deems such
proceeding necessary or advisable to exercise remedies available under the
Loan Documents.
FFCA, BY ACCEPTING THIS NOTE, AND DEBTOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY WITH
RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS NOTE, THE RELATIONSHIP OF FFCA AND DEBTOR, DEBTOR'S USE OR OCCUPANCY OF
THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR DAMAGE, OR ANY EMERGENCY OR
STATUTORY REMEDY. THIS WAIVER BY THE PARTIES HERETO OF ANY RIGHT EITHER MAY
HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED AND IS AN ESSENTIAL ASPECT OF
THEIR BARGAIN. FURTHERMORE, DEBTOR AND FFCA HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL
AND INDIRECT DAMAGES FROM THE OTHER PARTY, ANY OF THEIR AFFILIATES, OFFICERS,
DIRECTORS OR EMPLOYEES OR ANY OF THEIR SUCCESSORS WITH RESPECT TO ANY AND ALL
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ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY
THEM AGAINST THE OTHER PARTY HERETO, THEIR AFFILIATES, OFFICERS, DIRECTORS OR
EMPLOYEES OR THEIR SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED
HERETO. THE WAIVER BY DEBTOR AND FFCA OF ANY RIGHT THEY MAY HAVE TO SEEK
PUNITIVE, CONSEQUENTIAL AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE
PARTIES HERETO AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN.
This obligation shall bind Debtor and its successors and assigns, and
the benefits hereof shall inure to FFCA and its successors and assigns. FFCA
may assign its rights under this Note as set forth in the Loan Agreement.
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IN WITNESS WHEREOF, Debtor has executed and delivered this Note
effective as of the date first set forth above.
DEBTOR:
MORTON'S OF CHICAGO/GREAT NECK LLC,
a Delaware limited liability company
By: Morton's of Chicago Holding, Inc.,
its member
By /s/ Thomas J. Baldwin
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Its EVP & CFO
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Printed Name Thomas J. Baldwin
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