EXHIBIT 4-C
PROMISSORY NOTE
Loan No.: Loan_No
Borrower: BORROWER, Borrower_Entity
Restaurant No.: FranchiseType Restaurant No.RestaurantNo
Restaurant Address: Premises_Street
Premises_City,
Premises_State
Premises_Zip
Loan Type: Loan_Type
Loan Amount: Loan_Amt
Closing Date: Closing_Date
First Full
Payment Date: First_Payment_Date
Stated Rate: Interest_Rate
Monthly Payment
Amount: Monthly_Payment
Due Date: Maturity_Date
Prepayment
Provision: Yield Maintenance Amount
first ten (10) Years
Amortization Term
Period:
1. PROMISE TO PAY. For
value received, the Borrower whose
name is set forth above (the
"Borrower") promises to pay to the
order of LENDER, Lender_Entity
(together with its successors,
assigns and transferees, "Lender"),
a principal sum equal to the Loan
Amount set forth above, together
with interest on the unpaid balance
from time to time outstanding, as
follows:
Interest from and after the
Closing Date through the last day
of the month in which the Closing
Date occurs shall be due and
payable in advance on the Closing
Date. Notwithstanding the
foregoing, in the event the
Closing Date occurred on the
first day of a month, no interest
will be due and payable in advance
on the Closing Date.
Notwithstanding anything to the
contrary contained herein, at no
time shall the interest payable
under this Note be greater than
the maximum rate permitted by
applicable law ("Legal Rate"). If
any obligation under this Note
shall result in Lender receiving
an amount deemed to be interest
under applicable law in excess of
the Legal Rate, then the amount
which would be excessive interest
shall be applied to the
reduction of the principal
balance of this Note and not to
payment of interest. If such
excessive interest exceeds the
unpaid principal balance of this
Note, the excess shall be
refunded to Borrower.
Installments of principal and
interest in the amount of the
Monthly Payment Amount set forth
above shall be due and payable
on the first day of each month
(each a "Payment Date") commencing:
(i) in the event the Closing Date
occurred on the first day of
a month, on the first day of the
first month following the Closing
Date, and (ii) in all other cases,
on the first day of the second
month following the Closing Date
("First Full Payment Date") through
and including the Due Date, when
the outstanding principal balance,
plus accrued interest, and any
other sum payable hereunder, is
due and payable (unless the
indebtedness evidenced by this
Note is accelerated, in which
case, the Due Date is the date
of acceleration). The amortization
period for this Note, for purposes of
calculating the monthly
installments of principal and
interest, is the Amortization
Period set forth above.
All payments under this Note shall
be made in lawful money of the
United States of America in
immediately available funds at
Lender's principal office at
Lender_Street, Lender_City,
Lender_State Lender_Zip, at
such other address as Lender may
designate in writing, or by
electronic funds
withdrawal made by Lender upon
written authorization therefor
from Borrower, which
authorization shall not be
revocable by Borrower without the
prior written consent of Lender.
Payments will be applied first to
accrued interest and other fees
and charges due hereunder and then
to principal.
2. INTEREST RATE. The outstanding principal
balance of this Note shall bear interest at
a fixed rate (the "Stated Rate") equal to
Rate_Spread basis points
(Rate_Spread_Percent%) over the
yield, set as of 10:00 a.m. Ann
Arbor, Michigan time, on the Set
Date (defined below), on United
States Treasury obligations having
a fixed maturity of ten (10)
years, as such yield is
determined by the Lender on the
Set Date from Page PX1 (U.S.
Currents, W.Is. Actives) of the
Bloomberg, L.P. reporting
service, or if such rate is not
available from the Bloomberg, L.P.
reporting service, then the
appropriate interest rate as
provided by the Dow Jones Telerate
Service. The "Set Date" shall be such date
as the Borrower and the Lender
shall agree in a completed
writing (the "Rate Lock Letter"),
which shall reference this Note
and which date shall not be later
than two business days prior to the Closing Date as
set forth therein. This Note
shall bear interest at the
Stated Rate until the Due Date or
the occurrence of an Event of
Default (as hereinafter defined)
(whether by acceleration or
otherwise), and thereafter at a
rate which is three percent (3%)
above the Stated Rate (the "Default
Rate"). Interest will be computed
on the basis of a year
consisting of twelve (12) months of
thirty (30) days each. In no
event, however, shall the interest
rate exceed the maximum rate
allowed by law.
3. PREPAYMENT. If no Event of Default
(as hereinafter defined) then
exists, Borrower shall have the
right to prepay all, but not a
portion of, the principal balance
of this Note together with
accrued interest thereon on any
Payment Date; provided, however,
that Borrower shall provide no
less than thirty (30) days prior
written notice to Lender of
Borrower's intention to prepay
(the "Prepayment Notice"). Once
given, the Prepayment Notice may
not be withdrawn, and the failure
to prepay in accordance with the
Prepayment Notice shall constitute
an Event of Default.
Borrower acknowledges and agrees
that Lender is making the loan
evidenced by this Note in
consideration of the receipt by
Lender of all interest and other benefits
intended to be conferred by this
Note, and if payments of principal are
made to Lender prior to the
regularly scheduled due date of
such payments, for whatever
reason (whether voluntarily or
involuntarily), Lender will not
receive all such interest and other
benefits and may incur additional
costs. For these reasons, and
to induce Lender to make the loan, Borrower
expressly waives any right to prepay
this Note except as specifically
provided herein or in the Security
Instruments (as defined below).
Lender shall not be required to
accept any tender of prepayment of
the principal balance of this Note
at any time during the first
ten (10) "loan years" when the
"Reinvestment Rate" (as
hereinafter defined) is lower than
the Stated Rate unless Lender
also receives from Borrower a sum
of money (the "Prepayment
Premium") which shall be equal
to the positive difference between
the present value (computed at
the Reinvestment Rate) of the stream of
monthly payments of principal and
interest under this Note from the
date of the prepayment through
the tenth (10th) anniversary of
the First Full Payment Date at
the Stated Rate (without
duplication of either the
Default Rate or the late charge set
forth in Section 4 below) and the
outstanding principal balance of
this Note as of the date of the
prepayment (the "Differential").
In the event the Differential
is less than zero, the Prepayment
Premium shall be deemed to be
zero. For purposes of this Note, the
"Reinvestment Rate" is an
interest rate equal to the then
current yield on United States
Treasury obligations having a
weighted average life to maturity
closest in time but prior to the
Due Date of this Note, as
reported in The Wall Street Journal
(or any comparable successor
publication) on the fifth (5th)
business day preceding the
prepayment date. The first "loan
year" shall commence on the First
Full Payment Date, and subsequent
loan years shall commence on the
anniversaries of the First Full
Payment Date.
In addition to the Prepayment
Premium, if any, every tender of
prepayment of the principal balance
of this Note shall be accompanied
by a payment equal to all accrued
but unpaid interest and other
charges to the date of prepayment
(the "Other Charges").
If the outstanding principal
balance of this Note is accelerated
by reason of an Event of Default
such acceleration shall be
deemed to be a prepayment and
Borrower shall pay to Lender, in
addition to all sums due as
a result of the acceleration,
any applicable Prepayment
Premium and Other
Charges. In the event that
this Note is prepaid from
casualty insurance proceeds or
condemnation awards (as provided
in the Security Instruments,
defined below), no Prepayment
Premium or Other Charges shall
be due and payable with respect
to such prepayment, and each
monthly installment thereafter
shall be reduced to an amount
which will amortize the then
unpaid principal balance of this
Note at the Stated Rate over the
then remaining term of this Note.
Prepayments made as part of the
Monthly Payment Amount will be
applied to installments in their
inverse order of maturity. Until
this Note is paid in full, except
as set forth in the immediately
preceding paragraph, no prepayment
shall reduce the dollar amount of
monthly installments required to
be paid under this Note.
4.LATE PAYMENT CHARGE.
In the event that any payment
under this Note is not received
by Lender within fifteen (15)
days of the date when due, a late
charge equal to the lesser of
(y) five percent (5%) of the
amount of such payment or (z) the
maximum amount of late charge
permitted by law shall be due and
payable. Borrower agrees that the
late charge is a reasonable
estimate of the administrative
costs which Lender will incur in
processing the delinquency.
Lender's acceptance of a late
payment and/or of the late
payment charge will not waive
any default under this Note or
affect the acceleration of this
Note (if this Note has been
accelerated). Notwithstanding
the foregoing, Lender's
acceptance of all past due
principal, interest and late
charges shall constitute a
waiver of any monetary Event
of Default under this Note
existing prior to Lender's receipt of such
payments.
5. COLLATERAL. This Note
and the other obligations of Borrower to Lender
are secured by one or more
mortgages, security agreements
and/or financing statements dated
as of the Closing Date executed
by Borrower for the benefit of
Lender, including but not
limited to that certain Mortgage,
Assignment of rents, Fixture
Filing and Security Agreement of
even date herewith from Borrower
to Lender (the "Mortgage")
(collectively the "Security
Instruments"; together with any
other documents securing payment
under this Note, and any
agreements relating hereto or
executed in connection herewith,
the "Loan Documents"). All
property securing the
Indebtedness (as defined in
the Security Instruments) is
referred to as the "Collateral".
6. DEFAULT. Any event or
condition constituting an "Event of
Default" under the Security
Instruments shall be an "Event of
Default" hereunder. Upon an
occurrence of an Event of Default,
Lender shall have the option to
declare all or part of the
Indebtedness (including this Note)
immediately due and payable.
Lender shall have all of the rights
and remedies provided at law or
equity or by agreement including
without limitation the right to
sell or liquidate all or any part
of the Collateral under the
Security Instruments or otherwise
and to collect any Prepayment
Premium. The remedies of Lender
are cumulative and not
exclusive.
7. LIABILITY OF SIGNATORIES.
Borrower, and all guarantors and
endorsers, and any other party
liable for the Indebtedness
evidenced by this Note: (i)
severally waive presentment,
demand, protest, notice of
dishonor, notice of non-payment and
notice of acceleration of this
Note; and (ii) agree that no
extension or postponement of the time for
payment, or waiver, or indulgence
or forbearance granted to Borrower
(without limit as to number or
period) or any modification of this
Note, or any substitution, or
exchange or release of all or part
of the Collateral, or addition of
any party to this Note, or
release or discharge of, or
suspension of any rights and
remedies against any party liable
on this Note, shall reduce or
affect the obligation of any
other party liable for the payment
of this Note.
8. NON-WAIVER. No delay by Lender
in the exercise of any right or
remedy shall operate as a waiver.
No single or partial exercise by
Lender of any right or remedy
shall preclude any future
exercise of such right or remedy or
the exercise of any other right
or remedy. No waiver or indulgence by Lender
of any default or Event of
Default shall be effective unless
in writing and signed by Lender,
nor shall a waiver on one
occasion be construed as a bar
to any right or remedy, or waiver
of any default or Event of Default
on any future occasion.
9. REIMBURSEMENT OF EXPENSES. Borrower shall
reimburse Lender for all costs
and expenses, including attorneys'
fees, incurred by Lender in
enforcing the rights of Lender
under this Note or the other Loan
Documents. Such costs and expenses
shall include without limitation
costs or expenses incurred by
Lender in any bankruptcy,
reorganization, insolvency or other
similar proceeding. Any reference
in this Note to attorneys' fees
shall mean reasonable fees,
charges, costs and expenses of
outside counsel and paralegals, whether
or not a suit or proceeding is instituted, and
whether incurred at the trial court
level, on appeal, in a bankruptcy,
administrative or probate
proceeding, in consultation with
counsel, or otherwise.
10. WAIVER OF JURY TRIAL. EACH PARTY,
AFTER CONSULTING (OR HAVING HAD
THE OPPORTUNITY TO CONSULT) WITH
COUNSEL OF THEIR CHOICE,
KNOWINGLY AND VOLUNTARILY, AND FOR
THEIR MUTUAL BENEFIT, WAIVES ANY
RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION REGARDING
THE PERFORMANCE OR ENFORCEMENT
OF, OR IN ANY WAY RELATED TO,
THIS NOTE OR THE INDEBTEDNESS.
11. ASSIGNMENT. This Note is freely
assignable, in whole or in part,
by Lender without notice to or
consent of Borrower. Lender shall
be fully discharged from all
responsibility accruing hereunder
from and after the effective
date of any such assignment.
Lender's assignee shall, to
the extent of the assignment,
be vested with all the powers and
rights of Lender hereunder, and
to the extent of such assignment
the assignee may fully enforce
such rights and powers, and all
references to Lender shall mean
and refer to such assignee. Lender
shall retain all rights and
powers hereby given not so
assigned, transferred and/or
delivered. Borrower hereby
waives all defenses which
Borrower may be entitled to assert against
Lender's assignee with respect to liability
accruing hereunder prior to the
effective date of any assignment
of Lender's interest herein.
Borrower may not, in whole or in
part, directly or indirectly,
assign this Note or its rights
hereunder or delegate its duties
hereunder without, in each
instance, the specific prior
written consent of Lender, which
consent may be withheld or
delayed in Lender's sole
discretion.
12. SECURITIZATION. Borrower
understands and agrees that Lender
may, from time to time, assign its
rights and powers under this
Note, the Security Instruments,
and any other Loan Documents,
in whole or in part, in
connection with a securitization.
Borrower agrees to enter into an
amendment to this Note, the
Security Instruments and any other
Loan Documents if such amendments
are required by a nationally
recognized rating agency in
connection with a securitization
sponsored by Lender and in which
this Note, the Security Instruments
and the other Loan Documents are
to be included so long as such
amendment or amendments do not
adversely affect Borrower's rights,
privileges, liabilities or
obligations.
In the event this Note, the
Security Instruments, and any
other Loan Documents are
included as an asset of a
securitization by Lender, Borrower
shall, within ten (10) days
after Lender's written request
therefor, deliver or cause to be
delivered opinions and
certifications in form and
substance and delivered by
counsel reasonably acceptable to
Lender and the rating agency,
as may be reasonably required by
Lender and/or such rating agency
in connection with such
securitization. Borrower shall
not be required to bear the
cost of the preparation and
delivery of such opinions, if any.
Borrower shall, in the event this
Note, the Security Instruments,
and any other Loan Documents are
included as an asset of a
securitization, (a) gather any
environmental information, if any,
in the possession of Borrower, not
already delivered to Lender and
reasonably required by the rating
agency in connection with such
securitization, at Lender's
request, (b) meet at reasonable
times, on reasonable notice and at
Lender's expense, with
representatives of the rating
agency to discuss the business and
operations of the Borrower, and (c)
cooperate at reasonable times, on
reasonable notice and at Lender's
expense, with the reasonable
request of the rating agency and
Lender in connection with all of
the foregoing and the preparation
of any offering documents with
respect thereto.
Borrower shall, upon
Lender's written request therefor
in connection with a securitization in
which this Note, the Security Instruments,
and any other Loan Documents are
included as an asset promptly
deliver such financial statements
and related documentation prepared
by an independent certified public
accountant as may be necessary and
shall fully cooperate with the
Lender in connection with any
assurances or other documents,
which are deemed to be
necessary or convenient by
Lender, requested
from Borrower and in all cases
consistent with and not in
addition to the Borrower's
express obligations set forth
elsewhere in the Loan Documents.
Borrower shall not be required to
bear the cost of preparation of
financial statements and related
documentation prepared by an
independent certified public
accountant in connection with a
securitization (unless Borrower is
otherwise having such financial
statements and related documents
prepared).
For purposes of this Note, the
term "securitization" means the
sale, pledge, grant of a security
interest, collateral assignment,
transfer and delivery or other
encumbrance or disposition of all
or any portion of the Lender's
rights and powers in this Note by
the Lender, from time to time, to
one or more of its affiliates or
to other persons, including the
sale of this Note by the Lender
to one or more persons who will
issue debt instruments or equity
certificates backed by such Note
and the servicing of such Note by
a person appointed as servicer in
connection therewith.
For purposes of this Note, the
term "rating agency" means any
nationally recognized statistical
rating agency; provided, however,
that at any time during which this
Note is an asset of a
securitization, "rating agency"
shall mean the rating agency or
rating agencies that from time to
time rate the securities issued
in connection with such
securitization.
13.SEVERABILITY. If any provision
(or any part of any provision) contained
in this Note shall for any reason
be held or deemed to be invalid,
illegal or unenforceable in any
respect, such invalidity,
illegality or unenforceability
shall not affect any other
provision (or remaining part of the
affected provision) of this Note,
and this Note shall be construed
as if such invalid, illegal or
unenforceable provision (or part
thereof) had never been contained
herein and the remaining provision
of this Note shall remain in full
force and effect.
14.MISCELLANEOUS. The terms and
provisions of this Note shall be
governed by and construed in
accordance with the laws of the
State in which the restaurant
whose address is set forth above
is located. Lender and Borrower
agree that any dispute which may
arise between them with regard to
this Note shall be resolved by litigation in state
or federal court. Litigation may
be initiated by Lender or its
assignee or Borrower or its
assignee, at their discretion, in
the State of the principal place
of business of Lender or its
assignee, the State of the
principal place of business of
Borrower, or the State where the
Collateral is located.
BORROWER AND LENDER HEREBY
KNOWINGLY AND IRREVOCABLY WAIVE
ANY OBJECTIONS ON THE GROUNDS OF
IMPROPER JURISDICTION OR VENUE TO
AN ACTION INITIATED AS SET FORTH
ABOVE AND AGREES THAT EFFECTIVE
SERVICE OF PROCESS MAY BE MADE
UPON BORROWER BY MAIL IF AND TO
THE EXTENT PERMITTED BY THE
LOCAL RULES OF SUCH JURISDICTION. The terms and
provisions of this Note may only be changed
in writing, executed by Borrower
and Lender.
[Signature Page Follows]
IN WITNESS WHEREOF, the Borrower has executed this
Promissory Note as of the Closing Date.
BORROWER,
Borrower_Entity
By: INDEPENDENT_MEMBER,
Independent_Member_Entity
Its: Managing Member
_________________________
JOHN C. FIRTH
Executive Vice President and Secretary