1
Exhibit(10)(q)
Loan No. 5918596-001
PROMISSORY NOTE
(Orlando, Florida)
$1,875,000.00 December 23, 1996
FOR VALUE RECEIVED, 8250 International Drive Corporation, a Florida
corporation ("BORROWER"), promises to pay to the order of MetLife Capital
Financial Corporation ("METLIFE") at METLIFE's office at 10900 Northeast Fourth
Street, Suite 500, Bellevue, Washington 98004, attention: Real Estate
Department, or at such other address as the holder hereof may from time to time
designate in writing, the principal sum of One Million Eight Hundred Seventy
Five Thousand and no hundredths Dollars ($1,875,000.00) together with interest
from the date the proceeds of the loan (the "Loan") evidenced by this Promissory
Note (this "Note") are initially disbursed until maturity on the principal
balance from time to time remaining unpaid hereon the rate of eight and
seventy-five hundredths percent (8.75%) per annum computed on the basis of a
360-day year composed of twelve (12) months of thirty (30) days in installments
as follows: (i) interest only in advance at the rate of $455.73 per day shall be
due and payable on the date the proceeds of the Loan are initially disbursed to
or for the benefit of BORROWER (including, without limitation, disbursement into
an escrow for the benefit of BORROWER) for the period beginning on the date of
such disbursement and ending on the last day of the month during which such
disbursement occurs; and (ii) one hundred seventy nine (179) installments of
principal and interest in the amount of $18,739.66 each shall be payable
commencing on the first day of the second month following the month in which the
proceeds of the loan evidenced by this Note are initially disbursed and
continuing on the first day of each and every succeeding month until the first
day of the one hundred eightieth (180th) month thereafter at which time all then
unpaid principal and interest hereon shall be due and payable.
If any payment shall not be received by METLIFE when due and shall not
be received within ten (10) days thereafter, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the highest
additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
a prepayment premium as set forth below (the "Prepayment Premium"), BORROWER
shall have the right to prepay all, but not less than all, of the outstanding
balance of this Note on any regularly scheduled principal and interest payment
date. The Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of ten (10)-year
U.S. Treasury Constant Maturities (as published in the Index) from September 6,
1996, to the Friday immediately preceding the week in which the prepayment is
made, (ii) dividing the decrease by 100, (iii) multiplying the result by the
following described applicable premium factor (the "Premium Factor"), and (iv)
multiplying the product by the principal balance to be prepaid. If the Index is
unchanged or has increased from the Friday immediately preceding the date of the
proposal letter to the Friday immediately preceding the prepayment date, no
Prepayment Premium shall be due. The Premium Factor shall be the amount shown on
the following chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
2
108 - 97 ( 9) .044
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish STATISTICAL RELEASE H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the fifth (5th) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
BORROWER's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and shall be liable on all other
documents executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage:
(a) Failure of METLIFE to receive any payment of principal, interest,
or Prepayment Premium upon this Note when due, and such failure shall continue
for ten (10) days after written notice is given by METLIFE to BORROWER of the
same; or
(b) Failure of BORROWER within the time required by the Mortgage to
pay any sum secured thereby other than the Note or to make any payment for
taxes, insurance or for reserves for such payments, or any other payment
necessary to prevent filing of or discharge of any lien, and such failure shall
continue for a period of ten (10) days after written notice is given to BORROWER
by METLIFE specifying such failure; or
(c) Failure by BORROWER to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by BORROWER to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
2
3
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy or
filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the Deed
of Trust, / Mortgage, or the giving of notice by BORROWER to any governmental
body of insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or
net worth of BORROWER from the assets, liabilities or net worth of BORROWER
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Mortgage and such default shall continue for thirty
(30) days after notice is given to BORROWER specifying the nature of the
failure, or if the default cannot be cured within such cure period, BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such cure period to continue
with reasonable diligence all necessary curative actions. No notice of default
and no opportunity to cure shall be required with respect to defaults under
SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12)
months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under any other Loan Document when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Borrower's abandonment of the Property; or
3
4
(o) Any of the foregoing events occur, with respect to any guarantor
of any of BORROWER's obligations in connection with the indebtedness evidenced
by this Note.
Notwithstanding the foregoing, the occurrence of an Event of Default
under (i) that certain Revolving Credit Facility between Fleet Bank of
Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may
be amended from time to time, or (ii) any other unsecured credit facility
entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of
Default hereunder.
Upon the occurrence of any of the foregoing Events of Default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
BORROWER agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the State of Florida applicable to contracts made and to be performed therein
(excluding choice-of-law principles). BORROWER hereby irrevocably submits to the
jurisdiction of any state or federal court sitting in Florida in any action or
proceeding brought to enforce or otherwise arising out of or relating to this
Note, and hereby waives any objection to venue in any such court and any claim
that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes METLIFE or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of the
date of the initial advance hereunder.
4
5
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
Documentary stamp taxes in the amount of $___________ have been paid
and affixed to the Mortgage and canceled.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed by
its duly authorized officers under seal as of the year and day first written
above.
BORROWER:
8250 INTERNATIONAL DRIVE CORPORATION,
a Florida corporation
By: /s/ Robert M. Brown
----------------------------------------------
Robert M. Brown, Senior Vice President-Finance
Attest: /s/ John O. Cunningham
------------------------------------------
John O. Cunningham, Secretary
[SEAL]
5
6
Loan No. 5918596-003
PROMISSORY NOTE
(Amherst, New York)
$825,000.00 December 23, 1996
FOR VALUE RECEIVED, Saxet Corporation, a Delaware corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 10900 Northeast Fourth Street,
Suite 500, Bellevue, Washington 98004, attention: Real Estate Department, or at
such other address as the holder hereof may from time to time designate in
writing, the principal sum of Eight Hundred Twenty Five Thousand and no
hundredths Dollars ($825,000.00) together with interest from the date the
proceeds of the loan (the "Loan") evidenced by this Promissory Note (this
"Note") are initially disbursed until maturity on the principal balance from
time to time remaining unpaid hereon the rate of eight and seventy-five
hundredths percent (8.75%) per annum computed on the basis of a 360-day year
composed of twelve (12) months of thirty (30) days in installments as follows:
(i) interest only in advance at the rate of $200.52 per day shall be due and
payable on the date the proceeds of the Loan are initially disbursed to or for
the benefit of BORROWER (including, without limitation, disbursement into an
escrow for the benefit of BORROWER) for the period beginning on the date of such
disbursement and ending on the last day of the month during which such
disbursement occurs; and (ii) one hundred seventy-nine (179) installments of
principal and interest in the amount of $8,245.45 each shall be payable
commencing on the first day of the second month following the month in which the
proceeds of the loan evidenced by this Note are initially disbursed and
continuing on the first day of each and every succeeding month until the first
day of the one hundred eightieth (180th) month thereafter at which time all then
unpaid principal and interest hereon shall be due and payable.
If any payment shall not be received by METLIFE when due and shall not
be received within ten (10) days thereafter, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the highest
additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
a prepayment premium as set forth below (the "Prepayment Premium"), BORROWER
shall have the right to prepay all, but not less than all, of the outstanding
balance of this Note on any regularly scheduled principal and interest payment
date. The Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of ten (10)-year
U.S. Treasury Constant Maturities (as published in the Index) from September 6,
1996, to the Friday immediately preceding the week in which the prepayment is
made, (ii) dividing the decrease by 100, (iii) multiplying the result by the
following described applicable premium factor (the "Premium Factor"), and (iv)
multiplying the product by the principal balance to be prepaid. If the Index is
unchanged or has increased from the Friday immediately preceding the date of the
proposal letter to the Friday immediately preceding the prepayment date, no
Prepayment Premium shall be due. The Premium Factor shall be the amount shown on
the following chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
7
108 - 97 ( 9) .044
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish STATISTICAL RELEASE H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the fifth (5th) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
BORROWER's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and shall be liable on all other
documents executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage:
(a) Failure of METLIFE to receive any payment of principal, interest,
or Prepayment Premium upon this Note when due, and such failure shall continue
for ten (10) days after written notice is given by METLIFE to BORROWER of the
same; or
(b) Failure of BORROWER within the time required by the Mortgage to
pay any sum secured thereby other than the Note or to make any payment for
taxes, insurance or for reserves for such payments, or any other payment
necessary to prevent filing of or discharge of any lien, and such failure shall
continue for a period of ten (10) days after written notice is given to BORROWER
by METLIFE specifying such failure; or
(c) Failure by BORROWER to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by BORROWER to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
2
8
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy or
filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the
Mortgage, or the giving of notice by BORROWER to any governmental body of
insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or
net worth of BORROWER from the assets, liabilities or net worth of BORROWER
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Mortgage and such default shall continue for thirty
(30) days after notice is given to BORROWER specifying the nature of the
failure, or if the default cannot be cured within such cure period, BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such cure period to continue
with reasonable diligence all necessary curative actions. No notice of default
and no opportunity to cure shall be required with respect to defaults under
SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12)
months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under any other Loan Document when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Borrower's abandonment of the Property; or
3
9
(o) Any of the foregoing events occur, with respect to any guarantor
of any of BORROWER's obligations in connection with the indebtedness evidenced
by this Note.
Notwithstanding the foregoing, the occurrence of an Event of Default
under (i) that certain Revolving Credit Facility between Fleet Bank of
Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may
be amended from time to time, or (ii) any other unsecured credit facility
entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of
Default hereunder.
Upon the occurrence of any of the foregoing Events of Default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
BORROWER agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the State of New York applicable to contracts made and to be performed
therein (excluding choice-of-law principles). BORROWER hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in New York in
any action or proceeding brought to enforce or otherwise arising out of or
relating to this Note, and hereby waives any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes METLIFE or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of the
date of the initial advance hereunder.
4
10
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed by
its duly authorized officers under seal as of the year and day first written
above.
BORROWER:
SAXET CORPORATION,
a Delaware corporation
By: /s/ Robert M. Brown
-----------------------------------------------
Robert M. Brown, Senior Vice President-Finance
Attest: /s/ John O. Cunningham
-------------------------------------------
John O. Cunningham, Secretary
[SEAL]
5
11
Loan No. 5918596-002
PROMISSORY NOTE
(Paoli, Pennsylvania)
$900,000.00 December 23, 1996
FOR VALUE RECEIVED, Saxet Corporation, a Delaware corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 10900 Northeast Fourth Street,
Suite 500, Bellevue, Washington 98004, attention: Real Estate Department, or at
such other address as the holder hereof may from time to time designate in
writing, the principal sum of Nine Hundred Thousand and no hundredths Dollars
($900,000.00) together with interest from the date the proceeds of the loan (the
"Loan") evidenced by this Promissory Note (this "Note") are initially disbursed
until maturity on the principal balance from time to time remaining unpaid
hereon the rate of eight and seventy-five hundredths percent (8.75%) per annum
computed on the basis of a 360-day year composed of twelve (12) months of thirty
(30) days in installments as follows: (i) interest only in advance at the rate
of $218.75 per day shall be due and payable on the date the proceeds of the Loan
are initially disbursed to or for the benefit of BORROWER (including, without
limitation, disbursement into an escrow for the benefit of BORROWER) for the
period beginning on the date of such disbursement and ending on the last day of
the month during which such disbursement occurs; and (ii) one hundred
seventy-nine (179) installments of principal and interest in the amount of
$8,995.04 each shall be payable commencing on the first day of the second month
following the month in which the proceeds of the loan evidenced by this Note are
initially disbursed and continuing on the first day of each and every succeeding
month until the first day of the one hundred eightieth (180th) month thereafter
at which time all then unpaid principal and interest hereon shall be due and
payable.
If any payment shall not be received by METLIFE when due and shall not
be received within ten (10) days thereafter, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the highest
additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
a prepayment premium as set forth below (the "Prepayment Premium"), BORROWER
shall have the right to prepay all, but not less than all, of the outstanding
balance of this Note on any regularly scheduled principal and interest payment
date. The Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of ten (10)-year
U.S. Treasury Constant Maturities (as published in the Index) from September 6,
1996, to the Friday immediately preceding the week in which the prepayment is
made, (ii) dividing the decrease by 100, (iii) multiplying the result by the
following described applicable premium factor (the "Premium Factor"), and (iv)
multiplying the product by the principal balance to be prepaid. If the Index is
unchanged or has increased from the Friday immediately preceding the date of the
proposal letter to the Friday immediately preceding the prepayment date, no
Prepayment Premium shall be due. The Premium Factor shall be the amount shown on
the following chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
12
108 - 97 ( 9) .044
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish STATISTICAL RELEASE H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the fifth (5th) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
BORROWER's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and shall be liable on all other
documents executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage:
(a) Failure of METLIFE to receive any payment of principal, interest,
or Prepayment Premium upon this Note when due, and such failure shall continue
for ten (10) days after written notice is given by METLIFE to BORROWER of the
same; or
(b) Failure of BORROWER within the time required by the Mortgage to
pay any sum secured thereby other than the Note or to make any payment for
taxes, insurance or for reserves for such payments, or any other payment
necessary to prevent filing of or discharge of any lien, and such failure shall
continue for a period of ten (10) days after written notice is given to BORROWER
by METLIFE specifying such failure; or
(c) Failure by BORROWER to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by BORROWER to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
2
13
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy or
filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the
Mortgage, or the giving of notice by BORROWER to any governmental body of
insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or
net worth of BORROWER from the assets, liabilities or net worth of BORROWER
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Mortgage and such default shall continue for thirty
(30) days after notice is given to BORROWER specifying the nature of the
failure, or if the default cannot be cured within such cure period, BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such cure period to continue
with reasonable diligence all necessary curative actions. No notice of default
and no opportunity to cure shall be required with respect to defaults under
SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12)
months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under any other Loan Document when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Borrower's abandonment of the Property; or
3
14
(o) Any of the foregoing events occur, with respect to any guarantor
of any of BORROWER's obligations in connection with the indebtedness evidenced
by this Note.
Notwithstanding the foregoing, the occurrence of an Event of Default
under (i) that certain Revolving Credit Facility between Fleet Bank of
Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may
be amended from time to time, or (ii) any other unsecured credit facility
entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of
Default hereunder.
Upon the occurrence of any of the foregoing Events of Default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
BORROWER agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the Commonwealth of Pennsylvania applicable to contracts made and to be
performed therein (excluding choice-of-law principles). BORROWER hereby
irrevocably submits to the jurisdiction of any state or federal court sitting in
Pennsylvania in any action or proceeding brought to enforce or otherwise arising
out of or relating to this Note, and hereby waives any objection to venue in any
such court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes METLIFE or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of the
date of the initial advance hereunder.
4
15
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed by
its duly authorized officers under seal as of the year and day first written
above.
BORROWER:
SAXET CORPORATION,
a Delaware corporation
By: /s/ Robert M. Brown
-----------------------------------------------
Robert M. Brown, Senior Vice President-Finance
Attest: /s/ John O. Cunningham
-------------------------------------------
John O. Cunningham, Secretary
[SEAL]
5
16
Loan No. 5918596-004
PROMISSORY NOTE
(Columbus, Ohio)
$675,000.00 January 30, 1997
FOR VALUE RECEIVED, Saxet Corporation, a Delaware corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 10900 Northeast Fourth Street,
Suite 500, Bellevue, Washington 98004, attention: Real Estate Department, or at
such other address as the holder hereof may from time to time designate in
writing, the principal sum of Six Hundred Seventy-Five Thousand and no
hundredths Dollars ($675,000.00) together with interest from the date the
proceeds of the loan (the "Loan") evidenced by this Promissory Note (this
"Note") are initially disbursed until maturity on the principal balance from
time to time remaining unpaid hereon the rate of eight and seventy-five
hundredths percent (8.75%) per annum computed on the basis of a 360-day year
composed of twelve (12) months of thirty (30) days in installments as follows:
(i) interest only in advance at the rate of $164.06 per day shall be due and
payable on the date the proceeds of the Loan are initially disbursed to or for
the benefit of BORROWER (including, without limitation, disbursement into an
escrow for the benefit of BORROWER) for the period beginning on the date of such
disbursement and ending on the last day of the month during which such
disbursement occurs; and (ii) one hundred seventy-nine (179) installments of
principal and interest in the amount of $6,746.28 each shall be payable
commencing on the first day of the second month following the month in which the
proceeds of the loan evidenced by this Note are initially disbursed and
continuing on the first day of each and every succeeding month until the first
day of the one hundred eightieth (180th) month thereafter at which time all then
unpaid principal and interest hereon shall be due and payable.
If any payment shall not be received by METLIFE when due and shall not
be received within ten (10) days thereafter, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the highest
additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
a prepayment premium as set forth below (the "Prepayment Premium"), BORROWER
shall have the right to prepay all, but not less than all, of the outstanding
balance of this Note on any regularly scheduled principal and interest payment
date. The Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of ten (10)-year
U.S. Treasury Constant Maturities (as published in the Index) from September 6,
1996, to the Friday immediately preceding the week in which the prepayment is
made, (ii) dividing the decrease by 100, (iii) multiplying the result by the
following described applicable premium factor (the "Premium Factor"), and (iv)
multiplying the product by the principal balance to be prepaid. If the Index is
unchanged or has increased from the Friday immediately preceding the date of the
proposal letter to the Friday immediately preceding the prepayment date, no
Prepayment Premium shall be due. The Premium Factor shall be the amount shown on
the following chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
108 - 97 ( 9) .044
17
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish STATISTICAL RELEASE H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the fifth (5th) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
BORROWER's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Mortgage, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Mortgage") covering the
property (the "Property") securing this Note and shall be liable on all other
documents executed or delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Mortgage:
(a) Failure of METLIFE to receive any payment of principal, interest,
or Prepayment Premium upon this Note when due, and such failure shall continue
for ten (10) days after written notice is given by METLIFE to BORROWER of the
same; or
(b) Failure of BORROWER within the time required by the Mortgage to
pay any sum secured thereby other than the Note or to make any payment for
taxes, insurance or for reserves for such payments, or any other payment
necessary to prevent filing of or discharge of any lien, and such failure shall
continue for a period of ten (10) days after written notice is given to BORROWER
by METLIFE specifying such failure; or
(c) Failure by BORROWER to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by BORROWER to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
2
18
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Mortgage, including without limitation creating or allowing any liens
on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy or
filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the
Mortgage, or the giving of notice by BORROWER to any governmental body of
insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or
net worth of BORROWER from the assets, liabilities or net worth of BORROWER
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Mortgage, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Mortgage and such default shall continue for thirty
(30) days after notice is given to BORROWER specifying the nature of the
failure, or if the default cannot be cured within such cure period, BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such cure period to continue
with reasonable diligence all necessary curative actions. No notice of default
and no opportunity to cure shall be required with respect to defaults under
SECTION 17 or SECTION 22 of the Mortgage or if during the prior twelve (12)
months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under any other Loan Document when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Borrower's abandonment of the Property; or
3
19
(o) Any of the foregoing events occur, with respect to any guarantor
of any of BORROWER's obligations in connection with the indebtedness evidenced
by this Note.
Notwithstanding the foregoing, the occurrence of an Event of Default
under (i) that certain Revolving Credit Facility between Fleet Bank of
Massachusetts and Uno Restaurants, Inc. dated December 9, 1994, as the same may
be amended from time to time, or (ii) any other unsecured credit facility
entered into by Uno Restaurants, Inc. shall not by itself constitute an Event of
Default hereunder.
Upon the occurrence of any of the foregoing Events of Default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
BORROWER agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the State of Ohio applicable to contracts made and to be performed therein
(excluding choice-of-law principles). BORROWER hereby irrevocably submits to the
jurisdiction of any state or federal court sitting in Ohio in any action or
proceeding brought to enforce or otherwise arising out of or relating to this
Note, and hereby waives any objection to venue in any such court and any claim
that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Mortgage.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes METLIFE or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of the
date of the initial advance hereunder.
4
20
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed by
its duly authorized officers under seal as of the year and day first written
above.
BORROWER:
SAXET CORPORATION,
a Delaware corporation
By: /s/ Robert M. Brown
-----------------------------------------------
Robert M. Brown, Senior Vice President-Finance
Attest: /s/ John O. Cunningham
-------------------------------------------
John O. Cunningham, Secretary
[SEAL]
5
21
Loan No. 5918596-005
PROMISSORY NOTE
(Williamsburg, Virginia)
$825,000.00 February 27, 1997
FOR VALUE RECEIVED, Saxet Corporation, a Delaware corporation
("BORROWER"), promises to pay to the order of MetLife Capital Financial
Corporation ("METLIFE") at METLIFE's office at 10900 Northeast Fourth Street,
Suite 500, Bellevue, Washington 98004, attention: Real Estate Department, or at
such other address as the holder hereof may from time to time designate in
writing, the principal sum of Eight Hundred Twenty Five Thousand and no
hundredths Dollars ($825,000.00) together with interest from the date the
proceeds of the loan (the "Loan") evidenced by this Promissory Note (this
"Note") are initially disbursed until maturity on the principal balance from
time to time remaining unpaid hereon the rate of eight and seventy-five
hundredths percent (8.75%) per annum computed on the basis of a 360-day year
composed of twelve (12) months of thirty (30) days in installments as follows:
(i) interest only in advance at the rate of $200.52 per day shall be due and
payable on the date the proceeds of the Loan are initially disbursed to or for
the benefit of BORROWER (including, without limitation, disbursement into an
escrow for the benefit of BORROWER) for the period beginning on the date of such
disbursement and ending on the last day of the month during which such
disbursement occurs; and (ii) one hundred seventy nine (179) installments of
principal and interest in the amount of $8,245.45 each shall be payable
commencing on the first day of the second month following the month in which the
proceeds of the loan evidenced by this Note are initially disbursed and
continuing on the first day of each and every succeeding month until the first
day of the one hundred eightieth (180th) month thereafter at which time all then
unpaid principal and interest hereon shall be due and payable.
If any payment shall not be received by METLIFE when due and shall not
be received within ten (10) days thereafter, BORROWER shall pay an additional
charge equal to five percent (5.00%) of the delinquent payment or the highest
additional charge permitted by law, whichever is less.
Upon not less than thirty (30) days' advance written notice to METLIFE
at any time after the fifth (5th) anniversary of the due date of the first
monthly principal and interest payment due under this Note, and upon payment of
a prepayment premium as set forth below (the "Prepayment Premium"), BORROWER
shall have the right to prepay all, but not less than all, of the outstanding
balance of this Note on any regularly scheduled principal and interest payment
date. The Prepayment Premium shall be determined by (i) calculating the decrease
(expressed in basis points) in the current weekly average yield of ten (10)-year
U.S. Treasury Constant Maturities (as published in the Index) from September 6,
1996, to the Friday immediately preceding the week in which the prepayment is
made, (ii) dividing the decrease by 100, (iii) multiplying the result by the
following described applicable premium factor (the "Premium Factor"), and (iv)
multiplying the product by the principal balance to be prepaid. If the Index is
unchanged or has increased from the Friday immediately preceding the date of the
proposal letter to the Friday immediately preceding the prepayment date, no
Prepayment Premium shall be due. The Premium Factor shall be the amount shown on
the following chart for the month in which prepayment occurs:
No. Mos. Premium
Remaining (Years) Factor
--------- ------- ------
180 - 169 (15) .073
168 - 157 (14) .069
156 - 145 (13) .064
144 - 133 (12) .059
132 - 121 (11) .054
120 - 109 (10) .049
108 - 97 ( 9) .044
22
96 - 85 ( 8) .039
84 - 73 ( 7) .035
72 - 61 ( 6) .030
60 - 49 ( 5) .025
48 - 37 ( 4) .020
36 - 25 ( 3) .015
24 - 13 ( 2) .010
12 - 1 ( 1) .005
If the Federal Reserve Board ceases to publish Statistical Release H.15 [519],
then the decrease in the weekly average yield of ten (10)-year U.S. Treasury
Constant Maturities will be determined from another source designated by
METLIFE. Prepayment prior to the fifth (5th) anniversary of the due date of the
first monthly principal and interest payment due under this Note will not be
permitted.
If METLIFE at any time accelerates this Note after an Event of Default
(defined below), then BORROWER shall be obligated to pay the Prepayment Premium
in accordance with the foregoing schedule. The Prepayment Premium shall not be
payable with respect to condemnation awards or insurance proceeds from fire or
other casualty which METLIFE applies to prepayment, nor with respect to
BORROWER's prepayment of the Note in full during the last three (3) months of
the term of this Note unless an Event of Default has occurred. BORROWER
expressly acknowledges that such Prepayment Premium is not a penalty but is
intended solely to compensate METLIFE for the loss of its bargain and the
reimbursement of internal expenses and administrative fees and expenses incurred
by METLIFE.
BORROWER shall be liable on this Note and on all the representations,
warranties, indemnities and covenants in the Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing ("Deed of Trust") covering the
property (the "Property") securing this Note and all other documents executed or
delivered in connection herewith (the "Loan Documents").
Each of the following shall constitute an Event of Default ("Event of
Default") hereunder and under the Deed of Trust:
(a) Failure of METLIFE to receive any payment of principal, interest,
or Prepayment Premium upon this Note when due, and such failure shall continue
for ten (10) days after written notice is given by METLIFE to BORROWER of the
same; or
(b) Failure of BORROWER within the time required by the Deed of Trust
to pay any sum secured thereby other than the Note or to make any payment for
taxes, insurance or for reserves for such payments, or any other payment
necessary to prevent filing of or discharge of any lien, and such failure shall
continue for a period of ten (10) days after written notice is given to BORROWER
by METLIFE specifying such failure; or
(c) Failure by BORROWER to observe or perform any obligations of
BORROWER to METLIFE on or with respect to any transactions, debts, undertakings
or agreements other than the transaction evidenced by this Note; or
(d) Failure of BORROWER to make any payment or perform any obligation
under any superior liens or encumbrances on the Property, within the time
required thereunder, or commencement of any suit or other action to foreclose
any superior liens or encumbrances; or
(e) Failure by BORROWER to observe or perform any of its obligations
under any of the lease agreements covering the Property; or
2
23
(f) The Property is transferred or any agreement to transfer any part
or interest in the Property in any manner whatsoever is made or entered into
without the prior written consent of METLIFE, except as specifically allowed
under the Deed of Trust, including without limitation creating or allowing any
liens on the Property or leasing any portion of the Property; or
(g) Filing by BORROWER of a voluntary petition in bankruptcy or
filing by BORROWER of any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation, or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the seeking, consenting to, or acquiescing by BORROWER in the
appointment of any trustee, receiver, custodian, conservator or liquidator for
BORROWER, any part of the Property, or any of the income or rents of the
Property, or the making by BORROWER of any general assignment for the benefit of
creditors, or the inability of or failure by BORROWER to pay its debts generally
as they become due, or the insolvency on a balance sheet basis or business
failure of BORROWER, or the making or suffering of a preference within the
meaning of federal bankruptcy law or the making of a fraudulent transfer under
applicable federal or state law, or concealment by BORROWER of any of its
property in fraud of creditors, or the imposition of a lien upon any of the
property of BORROWER which is not discharged in the manner permitted by the Deed
of Trust, or the giving of notice by BORROWER to any governmental body of
insolvency or suspension of operations; or
(h) Filing of a petition against BORROWER seeking any reorganization,
arrangement, composition, readjustment, liquidation, or similar relief under any
present or future federal, state or other law or regulation relating to
bankruptcy, insolvency or other relief for debts, or the appointment of any
trustee, receiver, custodian, conservator or liquidator of BORROWER, of any part
of the Property or of any of the income or rents of the Property, unless such
petition shall be dismissed within sixty (60) days after such filing, but in any
event prior to the entry of an order, judgment or decree approving such
petition; or
(i) The institution of any proceeding for the dissolution or
termination of BORROWER voluntarily, involuntarily, or by operation of law; or
(j) A material adverse change occurs in the assets, liabilities or
net worth of BORROWER from the assets, liabilities or net worth of BORROWER
previously disclosed to METLIFE; or
(k) Any warranty, representation or statement furnished to METLIFE by
or on behalf of BORROWER under this Note, the Deed of Trust, or any of the Loan
Documents shall prove to have been false or misleading in any material respect;
or
(l) Failure of BORROWER to observe or perform any other covenant or
condition contained in the Deed of Trust and such default shall continue for
thirty (30) days after notice is given to BORROWER specifying the nature of the
failure, or if the default cannot be cured within such cure period, BORROWER
fails within such time to commence and pursue curative action with reasonable
diligence or fails at any time after expiration of such cure period to continue
with reasonable diligence all necessary curative actions. No notice of default
and no opportunity to cure shall be required with respect to defaults under
SECTION 17 or SECTION 22 of the Deed of Trust or if during the prior twelve (12)
months METLIFE has already sent a notice to BORROWER concerning default in
performance of the same obligation; or
(m) Failure of BORROWER to observe or perform any other obligation
under any other Loan Document when such observance or performance is due, and
such failure shall continue beyond the applicable cure period set forth in such
Loan Document, or if the default cannot be cured within such applicable cure
period, BORROWER fails within such time to commence and pursue curative action
with reasonable diligence or fails at any time after expiration of such
applicable cure period to continue with reasonable diligence all necessary
curative actions. No notice of default and no opportunity to cure shall be
required if during the prior twelve (12) months METLIFE has already sent a
notice to BORROWER concerning default in performance of the same obligation; or
(n) Borrower's abandonment of the Property; or
3
24
(o) Any of the foregoing events occur, with respect to any guarantor
of any of BORROWER's obligations in connection with the indebtedness evidenced
by this Note.
Notwithstanding the foregoing, the occurrence of an Event of Default
under (i) that certain Revolving Credit Facility between Fleet Bank of
Massachusetts and Uno Restaurants, Inc., dated December 9, 1994, as the same may
be amended from time to time, or (ii) any other unsecured credit facility
entered into by Uno Restaurants, Inc., shall not by itself constitute an Event
of Default hereunder.
Upon the occurrence of any of the foregoing Events of Default, METLIFE
shall have the option to declare the entire amount of principal and interest due
under this Note immediately due and payable without notice or demand, and
METLIFE may exercise any of its rights under this Note and any document executed
or delivered herewith. After acceleration or maturity, BORROWER shall pay
interest on the outstanding principal balance of this Note at the rate of five
percent (5.00%) per annum above Chase Manhattan Bank's prime interest rate in
effect from time to time, or fifteen percent (15.00%) per annum, whichever is
higher, provided that such interest rate shall not exceed the maximum interest
rate permitted by law.
All payments of the principal and interest on this Note shall be made
in coin or currency of the United States of America which at the time shall be
the legal tender for the payment of public and private debts.
If this Note is placed in the hands of an attorney for collection,
BORROWER agrees to pay reasonable attorneys' fees and costs incurred by METLIFE
in connection therewith, and in the event suit or action is instituted to
enforce or interpret this Note (including without limitation efforts to modify
or vacate any automatic stay or injunction), the prevailing party shall be
entitled to recover all expenses reasonably incurred at, before or after trial
and on appeal, whether or not taxable as costs, or in any bankruptcy proceeding,
or in connection with post-judgment collection efforts, including, without
limitation, attorneys' fees, witness fees (expert and otherwise), deposition
costs, copying charges and other expenses.
This Note shall be governed and construed in accordance with the laws
of the Commonwealth of Virginia applicable to contracts made and to be performed
therein (excluding choice-of-law principles). BORROWER hereby irrevocably
submits to the jurisdiction of any state or federal court sitting in Virginia in
any action or proceeding brought to enforce or otherwise arising out of or
relating to this Note, and hereby waives any objection to venue in any such
court and any claim that such forum is an inconvenient forum.
This Note is given in a commercial transaction for business purposes.
This Note may be declared due prior to its expressed maturity date,
all in the events, on the terms, and in the manner provided for in the Deed of
Trust.
BORROWER and all sureties, endorsers, guarantors and other parties now
or hereafter liable for the payment of this Note, in whole or in part, hereby
severally (i) waive demand, notice of demand, presentment for payment, notice of
nonpayment, notice of default, protest, notice of protest, notice of intent to
accelerate, notice of acceleration and all other notices, and further waive
diligence in collecting this Note or in enforcing any of the security for this
Note; (ii) agree to any substitution, subordination, exchange or release of any
security for this Note or the release of any party primarily or secondarily
liable for the payment of this Note; (iii) agree that METLIFE shall not be
required to first institute suit or exhaust its remedies hereon against BORROWER
or others liable or to become liable for the payment of this Note or to enforce
its rights against any security for the payment of this Note; and (iv) consent
to any extension of time for the payment of this Note, or any installment
hereof, made by agreement by METLIFE with any person now or hereafter liable for
the payment of this Note, even if BORROWER is not a party to such agreement.
BORROWER authorizes METLIFE or its agent to insert in the spaces
provided herein the appropriate interest rate and the payment amounts as of the
date of the initial advance hereunder.
4
25
All agreements between BORROWER and METLIFE, whether now existing or
hereafter arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of demand or acceleration of the final maturity
of this Note or otherwise, shall the interest contracted for, charged, received,
paid or agreed to be paid to METLIFE exceed the maximum amount permissible under
the applicable law. If, from any circumstance whatsoever, interest would
otherwise be payable to METLIFE in excess of the maximum amount permissible
under applicable law, the interest payable to METLIFE shall be reduced to the
maximum amount permissible under applicable law; and if from any circumstance
METLIFE shall ever receive anything of value deemed interest by applicable law
in excess of the maximum amount permissible under applicable law, an amount
equal to the excessive interest shall be applied to the outstanding principal
balance hereof, or if such excessive amount of interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to BORROWER. All
interest paid or agreed to be paid to METLIFE shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and spread throughout the
full period (including any renewal or extension) until payment in full of the
principal so that the interest hereon for such full period shall not exceed the
maximum amount permissible under applicable law. METLIFE expressly disavows any
intent to contract for, charge or receive interest in an amount which exceeds
the maximum amount permissible under applicable law. This paragraph shall
control all agreements between BORROWER and METLIFE.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING
ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER
WRITTEN AGREEMENT.
IN WITNESS WHEREOF, BORROWER has caused this Note to be executed by
its duly authorized officers under seal as of the year and day first written
above.
BORROWER:
SAXET CORPORATION,
a Delaware corporation
By: /s/ Robert M. Brown
-----------------------------------------------
Robert M. Brown, Senior Vice President-Finance
Attest: /s/ John O. Cunningham
-------------------------------------------
John O. Cunningham, Secretary
[SEAL]
5