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EXHIBIT 99.1
PROMISSORY NOTE
Dated: June 5, 2001
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$1,000,000.00 Executed/Delivered: Columbus, Ohio
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FOR VALUE RECEIVED, the undersigned, (i) COOKER RESTAURANT CORPORATION,
an Ohio corporation (herein separately "Cooker"), (ii) CGR MANAGEMENT
CORPORATION, a Florida corporation (herein separately "CGR"), and (iii) SOUTHERN
COOKER LIMITED PARTNERSHIP, an Ohio limited partnership (herein separately
"SCLP"), each having its principal office in Nashville, Tennessee (Cooker, CGR
and SCLP are hereinafter jointly and severally referred to as "Maker" unless the
context expressly requires otherwise), jointly and severally promise to pay to
the order of ROBERT K. ZELLE, an individual residing and domiciled in Davidson
County, Tennessee (hereinafter referred to as "Payee"), or holder, the principal
sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00), or so much thereof as may
be evidenced by this Note from time to time, in the manner hereinafter
specified.
NATURE OF LOAN
On May 25, 2001, Maker, and each of them, filed a voluntary petition in
bankruptcy under Chapter 11, United States Bankruptcy Code in the United States
Bankruptcy Court, S.D. (OH), E.D. (herein "Bankruptcy Court") as Bankruptcy
Court Case Nos. 01-56156 (Cooker), 01-56158 (SCLP), and 01-56160 (CGR) [jointly
administered under Case No. 01-56156], which shall hereinafter be referred to as
the "Bankruptcy Case". Pursuant to the Bankruptcy Case, Maker is/are
debtor(s)-in-possession of assets owned at the time the Bankruptcy Case was
filed. The loan evidenced by this Note is made pursuant to order of the
Bankruptcy Court in the Bankruptcy Case entered on or about the date of this
Note which order is hereby incorporated by this reference in its entirety and
the order and "Term Sheet" forming a part of or incorporated into said order
shall hereinafter be referred to as the "Loan Agreement". To the extent that
this Note or the hereinafter defined "Security Instruments" conflict with the
Loan Agreement, the provisions of the Loan Agreement shall control for all
purposes.
INTEREST - APPLICATION OF PAYMENTS
On the date that Payee funds the loan by delivering the entire loan
amount evidenced by this Note to Maker (herein the "Date of Funding"), Maker
shall pay or cause to be paid to Payee the following: (a) a loan fee in the
amount of Ten Thousand Dollars ($10,000); and (b) prepaid interest on this Note
for the entire term of this Note (to the "Maturity Date" defined under the next
following heading of this Note) in the amount of Thirty Thousand Dollars
($30,000).
"Default Rate" interest (hereafter defined) provided for in this Note
shall be computed on the basis of a three hundred sixty (360) day year
multiplied by the actual number of days elapsed during the period for which said
"Default Rate" interest is being calculated.
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All payments under this Note shall be first applied to any unpaid
interest at said "Default Rate" due under this Note and the balance to
principal.
"MATURITY DATE" - TERM OF NOTE
The entire unpaid principal balance of this Note shall be due and
payable in full on the ninetieth (90th) day following the Date of Funding (the
"Maturity Date").
PLACE OF PAYMENTS
Principal and any interest due hereunder shall be payable in lawful
money of the United States of America to Payee at his office address of 1209
Chickering Road, Nashville, TN 37215, or at such place as shall hereafter be
designated by written notice from Payee or holder to the Maker.
DEFAULT
In the event of any default hereunder, the entire unpaid principal of
this Note shall become at once due and collectible at the option of the Payee or
holder, without notice or demand, unless notice is specifically otherwise
required in the "Security Instruments" defined under the next heading of this
Note.
SECURITY AND NONMONETARY DEFAULT; "SECURITY INSTRUMENTS"
The payment of this Note is secured by valid and subsisting: (a)
"Open-End Mortgage Deed" of even date with this Note recorded or to be recorded
in the appropriate records of the Recorder's Office of Lucas County, Ohio from
Cooker to Payee conveying and encumbering as security for this Note improved
real estate commonly known as Cooker Store No. 132, located at 6658 Airport
Highway, Holland, Ohio 43528 (hereinafter the "Ohio Mortgage"); and (b) "Future
Advance Mortgage" of even date with this Note recorded or to be recorded in the
appropriate Public Records of Macomb County, Michigan from Cooker to Payee
conveying and encumbering as security for this Note improved real estate
commonly known as Cooker Store No. 151, located at 14425 Lakeside Circle,
Sterling Heights, Michigan, 48313 (hereinafter the "Michigan Mortgage"). The
Ohio Mortgage, Michigan Mortgage and Loan Agreement shall hereinafter be
collectively referred to as the "Security Instruments". The Ohio Mortgage and
Michigan Mortgage shall hereinafter be singularly and collectively refereed to
as the "Mortgage" unless the context expressly requires otherwise. All of the
agreements, conditions, covenants, warranties, representations, provisions and
stipulations made by or imposed upon the Maker in the Security Instruments are
hereby made a part of this Note to the same extent, and with the same force and
effect, as if they were fully recited herein.
If the Maker breaches or defaults under any provision contained in any
of the Security Instruments, or should any condition, covenant, warranty or
representation contained in any of the Security Instruments be breached or
proven untrue in any material respect, and the Maker fails to cure any such
breach or default after such notice and within the cure period, if any, provided
in the Security Instruments, then the Payee, or holder, shall have the right and
option to declare the entire unpaid principal balance of this Note at once due
and payable without further demand or
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presentment for payment to the Maker and proceed to foreclose all liens and
security interests securing the payment of same and to invoke all other rights,
remedies and recourses relating thereto provided in the Security Instruments, if
any. Failure of the Payee or holder to exercise the option contained in this
paragraph shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
DEFAULT RATE
In the event of any default hereunder (which shall not be deemed to
have occurred until the expiration of the applicable notice and cure period
provided in the Security Instruments, if any), the entire unpaid principal
balance of this Note together with any costs of collecting paid by Payee or
holder and any sums advanced by Payee or holder to perform Maker's obligations
pursuant to the Security Instruments shall bear interest at the "Default Rate"
(heretofore so-called) of Eighteen Percent (18%) per annum in effect until all
sums are paid in full.
PREPAYMENT
This Note is prepayable at any time, and from time to time, in whole or
in part, during its term without premium, penalty or fee.
TAX ON NOTE OR MORTGAGE
The Maker shall pay the cost of any revenue, tax, other stamps or fees
now or hereafter required by any law at any time to be affixed to this Note or
the Mortgage and if any taxes be so imposed with respect to debts secured by
mortgages and/or deeds of trust or with respect to notes evidencing debts so
secured, the Maker agrees to pay to the Payee or holder hereof upon demand the
amount of such taxes, and hereby waives any contrary provisions of any laws or
rules of court now or hereafter in effect.
WAIVER OF LAWS
The Maker hereby waives the benefit of any laws which now or hereafter
might authorize the stay of any execution to be issued on any judgment recovered
on this Note or the exemption of any property from levy or sale thereunder.
NONWAIVER
The remedies of this Note and the aforedescribed Security Instruments
securing the same, providing for the enforcement of the payment of the principal
sum thereby secured, and for the performance of the covenants, conditions and
agreements, matters and things herein and therein contained, are cumulative and
concurrent and may be pursued singly or successively or together, at the sole
discretion of the Payee or holder, and may be exercised as often as occasion
therefor shall occur. The waiver by the Payee or any holder of, or failure to
enforce any covenant or condition of this Note or said Security Instruments, or
to declare any default thereunder or hereunder, shall not operate as a waiver of
any subsequent default or affect the right of the said Payee or holder to
exercise any right or remedy not expressly waived in writing by the Payee or
holder.
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COSTS OF COLLECTION
The Maker hereby unconditionally agrees to pay the costs of collection
of this Note, including, but not limited to, reasonable attorney fees and
expenses incurred by Payee or holder.
BINDING EFFECT
This obligation shall bind the successors and assigns of Maker. The
benefits of this Note and Security Instruments shall inure to any holder hereof
and the heirs, personal representatives, successors and assigns of any holder,
including Payee.
WAIVER OF PRESENTMENT, ETC.
The Maker and all sureties, endorsers and guarantors of this Note, if
any, hereby: (a) waive demand, presentment for payment, notice of nonpayment,
protest, notice of protest and all other notice (unless notice is specifically
otherwise required in the Security Instruments), filing of suit or diligence in
collecting this Note, in enforcing any of the security rights or in proceeding
against any of the property covered by the Mortgage; (b) agree to any
substitution, exchange, addition or release of any such property or the addition
or release of any party or person primarily or secondarily liable herein; (c)
agree that the Payee or holder shall not be required first to institute any
suit, or to exhaust its remedies against the Maker or any other person or party
in order to enforce payment of this Note; (d) consent to any extension,
rearrangement, renewal or postponement of time of payment of this Note and to
any other indulgence with respect hereto without notice, consent or
consideration to any of them; and (e) agree that, notwithstanding the occurrence
of any of the foregoing, except as to any such person expressly released in
writing by the Payee or holder, they shall be and remain jointly and severally,
directly and primarily, liable for payment all sums due hereunder and under any
and all of the Security Instruments.
GOVERNING LAW
This Note and the Security Instruments shall be governed and construed
in accordance with the laws of the State of Ohio except enforcement of the
Michigan Mortgage shall be governed and construed under the laws of that State.
SEVERABILITY - USURY
The unenforceability or invalidity of any one or more provisions,
clauses, sentences and/or paragraphs of this Note shall not render any other
provision, clause, sentence and/or paragraph herein contained unenforceable or
invalid.
It is the intention of Payee or holder, which is signified by
acceptance of this Note, that this Note shall comply with the usury laws
applicable under the laws of the State of Ohio now or hereafter in effect.
Accordingly, to the extent that any rate of interest, loan fee and and/or
prepaid interest stated or provided for in this Note exceeds the maximum rate of
interest which may be charged on loans of the type and nature evidenced by this
Note under the aforesaid laws applicable
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to this Note, then said interest shall be abated and reduced to the extent
necessary to conform with the maximum permissible rate.
NOTICES
Any notices required or permitted to be given hereunder shall be given
in writing and may be personally delivered (including recognized overnight
delivery service such as Federal Express, UPS or Airborne), sent via telecopier
or mailed, United States Postal Service, registered or certified mail, postage
prepaid, return receipt requested, at the following addresses or such other
addresses as the following persons may for themselves designate in writing
delivered or mailed as aforesaid for the purposes of receiving notices
hereunder, to wit:
MAKER: Cooker Restaurant Corporation
CGR Management Corporation, and
Southern Cooker Limited Partnership
2609 West End Avenue
Nashville, TN 37203-1413
Attn: Mr. Henry R. Hillenmeyer,
Chairman & Chief Executive Officer
Telecopier No. (615) 301-2666
Telephone No. (615) 301-2665
(with required copy
to Maker's counsel) James F. Hadley, Esquire
James F. Hadley Co., L.P.A.
6556 Carrietowne Lane East
Toledo, OH 43615-1767
Telecopier No. (419) 843-6468
Telephone No. (419) 843-2750
PAYEE: Mr. Robert K. Zelle
1209 Chickering Road
Nashville, TN 37215
Telecopier No. (615) 297-6882
Telephone No. (615) 297-6811
(with required copy
to Payee's counsel) Baker & Hostetler LLP
65 East State Street - Suite 2100
Columbus, OH 43215-4260
Attn: Alec Wightman, Esq.
Telecopier No. (614) 462-2616
Telephone No. (614) 228-1541
Any notice addressed as aforesaid shall be deemed given (and received)
to the person to whom it is addressed as follows: (a) if personally delivered
(including delivery by overnight courier
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service), on the date that it is delivered; (b) if sent via telecopier, the date
that the sending person telecopies the notice to the recipient and receives
confirmation from the sending telecopy machine that it was sent to the number of
the recipient set forth above and received at that number; or (c) if mailed as
aforesaid, three (3) business days after deposited with the United States Postal
Service. For the purposes of this Note, "business day(s)" is hereby defined as a
day that is neither a Saturday, Sunday nor legal holiday observed by the United
States Postal Service.
IN WITNESS WHEREOF, the Maker, COOKER RESTAURANT CORPORATION, CGR
MANAGEMENT CORPORATION, and SOUTHERN COOKER LIMITED PARTNERSHIP, intending to be
jointly and severally fully bound by and obligated for payment of this Note in
accordance with its terms, each has caused this Note to be executed by its duly
authorized undersigned officer to be effective as of the date first above
written.
COOKER RESTAURANT CORPORATION, an
Ohio corporation ("Maker" or "Cooker")
By:
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Henry R. Hillenmeyer, Chairman &
Chief Executive Officer
CGR MANAGEMENT CORPORATION, a
Florida corporation ("Maker" or "CGR")
By:
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Henry R. Hillenmeyer, Chairman &
Chief Executive Officer
SOUTHERN COOKER LIMITED
PARTNERSHIP,
An Ohio limited partnership ("Maker" or "SCLP")
By: Cooker Restaurant Corporation, its Sole
General Partner
By:
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Henry R. Hillenmeyer, Chairman &
Chief Executive Officer of said
Sole General Partner
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