Exhibit 4.04(n)
AMENDED AND RESTATED PROMISSORY NOTE
Dated as of September 18, 1998
$3,000,000.00 Scottsdale, Arizona
THIS AMENDED AND RESTATED PROMISSORY NOTE (this "Note") executed by
MORTON'S OF CHICAGO-NORTH MIAMI BEACH, INC., a Delaware corporation
("Debtor"), amends and restates that certain Promissory Note dated as of May
14, 1998 in the principal amount of $3,000,000.00, payable to FFCA
ACQUISITION CORPORATION, a Delaware corporation ("FFCA").
Debtor, for value received, hereby promises to pay to FFCA, whose
address is 17207 North Perimeter Drive, Scottsdale, Arizona 85255, or order,
on or October 1, 2018 (the "Maturity Date"), as herein provided, the
principal sum of THREE MILLION AND 00/100 DOLLARS ($3,000,000.00), and to pay
interest on the unpaid principal amount of this Note from the date hereof to
the Maturity Date at the rate of 7.677% per annum on the basis of a 360-day
year of twelve 30-day months, such principal and interest to be paid
in immediately available funds and in lawful money of the United States.
Initially capitalized terms which are not otherwise defined in this
Note shall have the meanings set forth in that certain Loan Agreement dated as
of May 14, 1998 between Debtor and FFCA, as such agreement may be amended
from time to time (the "Loan Agreement").
Interest on the principal amount of this Note for the period
commencing with the date set forth above through the last day in the month in
which this note is dated shall be due and payable upon delivery of this Note.
Thereafter, principal and interest shall be payable in consecutive monthly
installments of TWENTY-FOUR THOUSAND FOUR HUNDRED NINETY-THREE AND 52/100
DOLLARS ($24,493.52) commencing on November 1, 1998, and continuing on the
first day of each month thereafter until the Maturity Date, at which time,
the outstanding principal and unpaid accrued interest shall be due and
payable.
Prior to the fifth anniversary of this Note, Debtor may not prepay
this Note. From and after the fifth anniversary of this Note, Debtor may
prepay this Note in full, but not in part, including all accrued but unpaid
interest hereunder and all sums advanced by FFCA pursuant to the Loan
Documents which secure this Note, provided that (i) an Event of Default shall
not have occurred under this Note, (ii) any such prepayment shall only be
made on a regularly scheduled payment date upon not less than 30 days prior
written notice from Debtor to FFCA, and (iii) any such prepayment shall be
made together with payment of a prepayment premium equal to:
(a) 5% of the amount prepaid if the prepayment is made on or
following the fifth anniversary of this Note but prior to the sixth
anniversary of this Note;
(b) 4% of the amount prepaid if the prepayment is made on or
following the sixth anniversary of this Note but prior to the seventh
anniversary of this Note;
(c) 3% of the amount prepaid if the prepayment is made on or
following the seventh anniversary of this Note but prior to the eighth
anniversary of this Note;
(d) 2% of the amount prepaid if the prepayment is made on or
following the eighth anniversary of this Note but prior to the ninth
anniversary of this Note; and
(e) 1% of the amount prepaid if the prepayment is made on or
following the ninth anniversary of this Note but prior to the tenth
anniversary of this Note.
If this Note is prepaid on or following the tenth anniversary of this Note
there shall be no prepayment premium.
The foregoing prepayment premium shall be due and payable if this
Note is prepaid prior to the tenth anniversary of this Note regardless of
whether such prepayment is the result of a voluntary prepayment by Debtor or
as a result of FFCA declaring the unpaid principal balance of this Note,
accrued interest and all other sums due under this Note and any Loan
Documents which secure this Note, due and payable in accordance with the
provisions of this Note (the "Acceleration"); provided, however, the
prohibition on prepayment and such prepayment premium shall not be applicable
with respect to a prepayment of this Note as a result of the application of
casualty or condemnation proceeds as contemplated by the Mortgage. If this
Note is prepaid as a result of an Acceleration prior to the fifth anniversary
of this Note, a prepayment premium of 5% of the principal amount prepaid
shall be due and payable to FFCA by Debtor at the time of such prepayment.
Upon execution of this Note, Debtor shall establish arrangements
whereby all payments of principal and interest hereunder are transferred by
wire or other means directly from Debtor's bank account to such account as
FFCA may designate or as FFCA may otherwise designate. Each payment of
principal and interest hereunder shall be applied first toward any past due
payments under this Note (including payment of all Costs (as herein
defined)), then to accrued interest, and the balance, after the payment of
such accrued interest, if any, shall be applied to the unpaid principal
balance of this Note; provided, however, each payment hereunder after an
Event of Default has occurred under this Note shall be applied as FFCA in its
sol discretion may determine.
This Note is secured by the Mortgage and guaranteed by the Guarantor
pursuant to the Guaranty. An "Event of Default" shall be deemed to have
occurred under this Note if (a) any principal, interest or other monetary sum
certain due under this Note is not paid within five days after the date when
due and FFCA shall have given Debtor notice thereof and a period of seven
days from the delivery of such notice shall have elapsed without such
past-due sum being paid, or (b) an Event of Default (as defined under any of
the Loan Documents).
During the continuation of an Event of Default under this Note, then,
time being of the essence hereof, FFCA may declare the entire unpaid
principal balance of this Note, accrued interest, if any, and all other sums
due under this Note and any Loan Documents which secure this Note, due and
payable at once without notice to Debtor.
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All past-due principal and/or interest shall bear interest from the
due date to the date of actual payment at the lesser of the highest rate for
which the undersigned may legally contract, or the rate of 13% per annum (the
"Default Rate"), and such Default Rate shall continue to apply following a
judgment in favor of FFCA under this Note; provided, however, the Default
Rate shall not be applicable if all past due principal and/or interest is
paid in full within the notice and cure periods provided for in the Loan
Agreement.
All payments of principal and interest due hereunder shall be made
(i) without deduction of any present and future taxes, levies, imposts,
deductions, charges or withholdings, which amounts shall be paid by Debtor,
and (ii) without any other right of abatement, reduction, setoff, defense,
counterclaim, interruption, deferment or recoupment for any reason
whatsoever. Debtor will pay the amounts necessary (such amounts are hereby
deemed not to include income taxes, gross receipts taxes, transfer taxes and
corporate taxes) such that the gross amount of the principal and interest
received by FFCA is not less than that required by this Note.
No delay or omission on the part of FFCA in exercising any remedy,
right or option under this Note shall operate as a waiver of such remedy,
right or option. In any event, a waiver on any one occasion shall not be
construed as a waiver or bar to any such remedy, right or option on a future
occasion.
Debtor hereby waives presentment, demand for payment, notice of
dishonor, notice of protest, and protest, notice of intent to accelerate,
notice of acceleration and all other notices or demands in connection with
delivery, acceptance, performance, default or endorsement of this Note.
All notices, consents, approvals or other instruments required or
permitted to be given by either party pursuant to this Note shall be in
writing and given by (i) hand delivery, (ii) facsimile, (iii) express
overnight delivery service or (iv) certified or registered mail, return
receipt requested, and shall be deemed to have been delivered upon (a)
receipt, if hand delivered, (b) transmission, if delivered by facsimile, (c)
the next business day, if delivered by express overnight delivery service, or
(d) the third business day following the day of deposit of such notice with
the United States Postal Service, if sent by certified or registered mail,
return receipt requested. Notices shall be provided to the parties and
addresses (or facsimile numbers, as applicable) specified below:
If to Debtor: Mr. Thomas Baldwin
Chief Financial Officer
Morton's of Chicago--North Miami Beach, Inc.
3333 New Hyde Park Road
New Hyde Park, New York 11042
Telephone: (516)627-1515
Telecopy: (516)627-2050
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with a copy to: Mr. Thomas Baldwin
Chief Financial Officer
Morton's Restaurant Group, Inc.
3333 New Hyde Park Road
New Hyde Park, New York 11042
Telephone: (516) 627-1515
Telecopy: (516) 627-2050
with a copy to: David Gruber, Esq.
Salamon, Gruber, Newman and Blaymore
Suite 102
97 Powerhouse Road
Roslyn Heights, NY 11577
Telephone: (516) 625-1700
Telecopy: (516) 625-1795
If to FFCA: Dennis L. Ruben, Esq.
Executive Vice President and General Counsel
FFCA Acquisition Corporation
17207 North Perimeter Drive
Scottsdale, AZ 85255
Telephone: (602) 585-4500
Telecopy: (602) 585-2226
or to such other address or such other person as either party may from time to
time hereafter specify to the other party in a notice delivered in the manner
provided above.
Should any indebtedness represented by this Note be collected at law
or in equity, or in bankruptcy or other proceedings, or should this Note be
placed in the hands of attorneys for collection after fault, Debtor shall
pay, in addition to the principal and interest due and payable hereon, all
costs of collecting or attempting to collect this Note (the "Costs"),
including reasonable attorney's fees and expenses of FFCA (including those
fees and expenses incurred in connection with any appeal and those of FFCA's
in-house counsel) whether or not a judicial action is commenced by FFCA.
This Note may not be amended or modified except by a written
agreement duly executed by Debtor and FFCA. In case any one or more of the
provisions contained in this Note shall be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Note, and this Note shall be
construed as if such provision had never been contained herein or therein.
Notwithstanding anything to the contrary contained in any of the Loan
Documents, the obligations of Debtor to FFCA under this Note and any other
Loan Documents are subject to the limitation that payments of interest and
late charges to FFCA shall not be required to the extent that receipt of any
such payment by FFCA would be contrary to provisions of applicable law
limiting the maximum rate of interest that may be charged or collected by
FFCA. The portion of any such payment received by FFCA that is in excess of
the maximum interest permitted by such
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provisions of law shall be credited to the principal balance of this Note or
if such excess portion exceeds the outstanding principal balance of this
Note, then such, excess portion shall be refunded to Debtor. All interest
paid or agreed to be paid to FFCA shall, to the extent permitted by
applicable law, be amortized, prorated, allocated and/or spread throughout
the full term of this Note (including, without limitation, the period of any
renewal or extension thereof) so that interest for such full term shall not
exceed the maximum amount permitted by applicable law.
It is the intent of the parties hereto that the business relationship
created by this Note and the other Loan Documents is solely that of creditor
and debtor and has been entered into by both parties in reliance upon the
economic and legal bargains contained in the Loan Documents. None of the
agreements contained in the Loan Documents is intended, nor shall the same be
deemed or construed, to create a partnership between FFCA and Debtor, to make
them joint venturers, to make Debtor an agent, legal representative, partner,
subsidiary or employee of FFCA, nor to make FFCA in any way responsible for
the debts, obligations or losses of Debtor. Debtor acknowledges that FFCA (or
any Affiliate of FFCA) and Franchisor are not affiliates, agents, partners,
or joint venturers, nor do they have any other legal, representative or
fiduciary relationship other than debtor/creditor and/or landlord/tenant
relationship unrelated to the transactions contemplated by the Loan Documents.
FFCA, by accepting this Note, and Debtor acknowledge and warrant to
each other that each has been represented by independent counsel and Debtor
has executed this Note after being fully advised by said counsel as to its
effect and significance. This Note shall be interpreted and construed in a
fair and impartial manner without regard to such factors as the party which
prepared the instrument, the relative bargaining powers of the parties or the
domicile of any party.
Time is of the essence in the performance of each and every
obligation under this Note.
Debtor acknowledges that this Note was substantially negotiated in
the State of Arizona, the executed Note was delivered in the State of
Arizona, all payments under this Note will be delivered in the State of
Arizona and there are substantial contacts between the parties and the
transactions contemplated herein and the State of Arizona. For purposes of
any action or proceeding arising out of this Note, the parties hereto
expressly submit to the jurisdiction of all federal and state courts located
in the State of Arizona. Debtor consents that it may be served with any
process or paper by registered mail or by personal service within or without
the State of Arizona in accordance with applicable law. Furthermore, Debtor
waives and agrees not to assert in any such action, suit or proceeding that
it is not personally subject to the jurisdiction of such courts, that the
action, suit or proceeding is brought in an inconvenient forum or that venue
of the action, suit or proceeding is improper. It is the intent of Debtor and
FFCA that all provisions of this Note shall be governed by and construed
under the laws of the State of Arizona. Nothing contained in this paragraph
shall limit or restrict the right of FFCA to commence any proceeding in the
federal or state courts located in the state in which the Premises is located
to the extent FFCA deems such proceeding necessary or advisable to exercise
remedies available under the Loan Documents.
FFCA, BY ACCEPTING THIS NOTE, AND DEBTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
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TRIAL BY JURY WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION,
PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO
AGAINST THE OTHER OR ITS SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF
OR IN CONNECTION WITH THIS NOTE, THE RELATIONSHIP OF FFCA AND DEBTOR,
DEBTOR'S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM FOR INJURY OR
DAMAGE, OR ANY EMERGENCY OR STATUTORY REMEDY. THIS WAIVER BY THE PARTIES
HERETO OF ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY HAS BEEN NEGOTIATED
AND IS AN ESSENTIAL ASPECT OF THEIR BARGAIN. FURTHERMORE, DEBTOR AND FFCA
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE
TO SEEK PUNITIVE, CONSEQUENTIAL AND INDIRECT DAMAGES FROM THE OTHER PARTY
WITH RESPECT TO ANY AND ALL ISSUES PRESENTED IN ANY ACTION, PROCEEDING, CLAIM
OR COUNTERCLAIM BROUGHT BY THEM AGAINST THE OTHER PARTY HERETO OR ITS
SUCCESSORS WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN CONNECTION WITH
THIS NOTE OR ANY DOCUMENT CONTEMPLATED HEREIN OR RELATED HERETO. THE WAIVER
BY DEBTOR AND FFCA OF ANY RIGHT THEY MAY HAVE TO SEEK PUNITIVE, CONSEQUENTIAL
AND INDIRECT DAMAGES HAS BEEN NEGOTIATED BY THE PARTIES HERETO AND IS AN
ESSENTIAL ASPECT OF THEIR BARGAIN.
This obligation shall bind Debtor and its successors and assigns, and
the benefits hereof shall inure to FFCA and its successor and assigns. FFCA
may assign its rights under this Note as set forth in the Loan Agreement.
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IN WITNESS WHEREOF, Debtor has executed and delivered this Note
effective as of the date first set forth above.
DEBTOR:
MORTON'S OF CHICAGO-NORTH MIAMI
BEACH, INC., a Delaware corporation
By /s/ Thomas J. Baldwin
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Its EVP & CFO
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Printed Name Thomas J. Baldwin
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