Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s EBITDA plus operating lease payments less Maintenance Capital Expenditures equal to (50%) of depreciation minus cash dividends to the Borrower’s shareholders minus cash income taxes paid, to (ii) the sum of the Borrower’s scheduled principal payments on long term debt and capital lease obligations plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 to 1.0, measured quarterly on a rolling twelve month basis. EXHIBIT E PERMITTED INDEBTEDNESS Balance September 18, 2007 Indebtedness to US Bank NA Bullet Loan 2,538,479 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 Golden Corral Credit Facility Construction Phase 4,500,000 Term Loans 28,970,639 33,470,639 (up to $15,000,000 more may be borrowed) $ 38,009,118 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease Term Covington, KY (Riverview Hotel) $48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Term Rent Per Month None EXHIBIT 10 (f) 2) EXHIBIT F EXHIBIT F SEVENTEENTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 Cincinnati, Ohio December 3, 2007 XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1, 2010, the principal sum of FIVE MILLION DOLLARS ($5,000,000), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 15, 2004 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan evidenced hereby was made and is to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Amended and Restated Revolving Credit Promissory Note dated as of September 27, 2005 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx, Vice President-Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 45206
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Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s Adjusted EBITDA plus operating lease payments less Maintenance Capital Expenditures maintenance capital expenditures equal to (50%) of depreciation minus less cash dividends to the Borrower’s shareholders minus less cash income taxes paid, to (ii) the sum of the Borrower’s scheduled principal payments on long term debt and capital lease obligations (excluding Revolving Loan principal payments) plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s Adjusted EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 to 1.0, measured quarterly on a rolling twelve month basis. EXHIBIT 10.5 EXHIBIT E PERMITTED INDEBTEDNESS Balance as of September 1822, 2007 2009 Indebtedness to US Bank NA Bullet Term Loan 2,538,479 539,697 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 4,000,000 Golden Corral Credit Facility Construction Phase 4,500,000 Term Loans 28,970,639 33,470,639 (up to $15,000,000 8,000,000 more may be borrowed) 26,999,269 26,999,269 $ 38,009,118 31,538,966 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease Term Covington, KY (Riverview Hotel) $(renewal options aggregating 50 years) $ 48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Term Rent Per Month None EXHIBIT 10 (f) 2) 10.5 EXHIBIT F EXHIBIT F SEVENTEENTH EIGHTEENTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 Cincinnati, Ohio December 3October 21, 2007 2009 XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1October 21, 2010, the principal sum of FIVE MILLION DOLLARS ($5,000,000), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 15, 2004 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan evidenced hereby was made and is to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Seventeenth Amended and Restated Revolving Credit Promissory Note dated as of September 27December 3, 2005 2007 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Seventeenth Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx, Vice President-Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 45206 EXHIBIT 10.5 EXHIBIT G TERM PROMISSORY NOTE $4,000,000.00 Cincinnati, Ohio October 21, 2009 XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), at the office of the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, or at such other place as the holder of this Term Promissory Note (this “Term Note”) may from time to time designate in writing, in lawful money of the United States of America and in immediately available funds, the principal sum of FOUR MILLION DOLLARS ($4,000,000.00), at such times as are specified in Section 4(b)(iii) of the Loan Agreement described below. This is the Term Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Third Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 21, 2009 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Term Loan evidenced hereby was made and is to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Term Loan as described in Section 4(b)(iii) of the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Term Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Term Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Term Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Term Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Term Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X RESTAURANTS, INC. By: Xxxxxx X. Xxxxxx, Vice President-Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 45206
Appears in 1 contract
Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s 's Adjusted EBITDA plus operating lease payments less Maintenance Capital Expenditures maintenance capital expenditures equal to (50%) of depreciation minus less cash dividends to the Borrower’s 's shareholders minus less cash income taxes paid, paid to (ii) the sum of the Borrower’s 's scheduled principal payments on long term debt and capital lease obligations (excluding Revolving Loan principal payments) plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s 's Adjusted EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 1.05 to 1.0, measured quarterly on a rolling twelve month basis. EXHIBIT E PERMITTED INDEBTEDNESS Balance September 18April 13, 2007 2012 Indebtedness to US Bank NA Bullet 2009 Term Loan 2,538,479 $ 1,650,754 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 Golden Corral $ — Stock Repurchase Term Loan $ 904,622 Construction Loan Credit Facility Construction Phase 4,500,000 Term Loans 28,970,639 33,470,639 (up to $15,000,000 more may be borrowed) $ 38,009,118 — Term Loans $ 19,183,993 $ 19,183,993 $21,739,369 + $15,000,000 + $5,000,000For a total of $41,739,369 $ 21,739,369 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. 's books Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease (See work paper attached) April 13, 2012 Indebtedness to US Bank NA 2009 Term Covington, KY Loan Revolving Loan (Riverview Hotelup to $5,000,000 may be borrowed) $48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Stock Repurchase Term Rent Per Month None EXHIBIT 10 (f) 2) Loan 904,622 Exhibit 10.2 EXHIBIT F EXHIBIT F SEVENTEENTH ELEVENTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 34,183,992.56 Cincinnati, Ohio December 3April 10, 2007 XXXXXX’X 2012 XXXXXX'X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1October 15, 20102013, the principal sum of FIVE MILLION DOLLARS Thirty-Four Million One Hundred Eighty-Three Thousand Nine Hundred Ninety-Two and 56/100 Dollars ($5,000,00034,183,992.56), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Construction Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 15April 10, 2004 2012 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan Construction Loans evidenced hereby was were made and is are to be repaid and for a statement of the Bank’s 's remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. As of April 10, 2012, as a result of the prior draws by the Borrower under the Loans and prior conversions of Construction Loans to Term Loans, of the maximum Thirty-Four Million One Hundred Eighty-Three Thousand Nine Hundred Ninety-Two and 56/100 Dollars ($34,183,992.56) Construction Loan facility, (i) Nineteen Million One Hundred Eighty-Three Thousand Nine Hundred Ninety-Two and 56/100 Dollars ($19,183,992.56) has been drawn by the Borrower under the Construction Loans and already been converted to Term Loans or currently remains outstanding as Construction Loans and (ii) a maximum of Fifteen Million Dollars ($15,000,000) still remains available to be drawn by the Borrower under the Construction Loans. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan Construction Loans as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ ' fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Tenth Amended and Restated Revolving Credit Promissory Note dated as of September 27October 21, 2005 2010 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Tenth Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X XXXXXX'X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx Xxxxxx X. XxxxxxXxxx Xxxxxxx, Vice President-President Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 4520645206 Exhibit 10.2 EXHIBIT G-1 COST OF FUNDS RATE TERM LOAN PROMISSORY NOTE $ Cincinnati, Ohio __________ 1, ___ XXXXXX'X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before ____________ 1, _____ (the “Maturity Date”), the principal sum of ___________________ Dollars ($________), together with interest thereon as hereinafter provided.
Appears in 1 contract
Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s EBITDA plus operating lease payments less Maintenance Capital Expenditures equal to (50%) of depreciation minus cash dividends to the Borrower’s shareholders minus cash income taxes paid, to (ii) the sum of the Borrower’s scheduled principal payments on long term debt and capital lease obligations plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 to 1.0, measured quarterly on a rolling twelve month basis. EXHIBIT E PERMITTED INDEBTEDNESS Balance September 18, 2007 Indebtedness to US Bank NA Bullet Loan 2,538,479 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 Golden Corral Credit Facility Construction Phase 4,500,000 Term Loans 28,970,639 33,470,639 (up to $15,000,000 more may be borrowed) $ 38,009,118 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease Term Covington, KY (Riverview Hotel) $$ 48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Term Rent Per Month None EXHIBIT 10 (f) 2) EXHIBIT F EXHIBIT F SEVENTEENTH EIGHTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 89,000,000 Cincinnati, Ohio December 3, 2007 XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1, 2010, the principal sum of FIVE MILLION DOLLARS Eighty-Nine Million Dollars ($5,000,00089,000,000), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Construction Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second First Amended and Restated Loan Agreement [Revolving and Bullet LoansGolden Corral] dated as of October 15, 2004 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan Construction Loans evidenced hereby was were made and is are to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. As of December 3, 2007, as a result of the prior draws by the Borrower under the Loans and prior conversions of Construction Loans to Term Loans, of the maximum Eighty-Nine Million Dollar ($89,000,000) Construction Loan facility, (i) Seventy-Four Million Dollars ($74,000,000) has been drawn by the Borrower under the Construction Loans and already been converted to Term Loans or currently remains outstanding as Construction Loans and (ii) a maximum of Fifteen Million Dollars ($15,000,000) still remains available to be drawn by the Borrower under the Construction Loans. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan Construction Loans as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Seventh Amended and Restated Revolving Credit Promissory Note dated as of September 27, 2005 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Seventh Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx, Vice President-Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 4520645206 EXHIBIT 10 (f) 2) AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT [REVOLVING AND BULLET LOANS] THIS AMENDMENT NO. 3 TO SECOND AMENDED AND RESTATED LOAN AGREEMENT [REVOLVING AND BULLET LOANS] is made as of December 3, 2007 (this “Amendment”) by and between U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (together with its successors and assigns, the “Bank”), and XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), with respect to the Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] entered into as of October 15, 2004 by the Bank and the Borrower (as the same has been amended and/or supplemented from time to time, and as the same may be further amended, supplemented, restated, or otherwise modified from time to time) (the “Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement as amended hereby.
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Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s Adjusted EBITDA plus operating lease payments less Maintenance Capital Expenditures maintenance capital expenditures equal to (50%) of depreciation minus less cash dividends to the Borrower’s shareholders minus less cash income taxes paid, to (ii) the sum of the Borrower’s scheduled principal payments on long term debt and capital lease obligations (excluding Revolving Loan principal payments) plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s Adjusted EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 to 1.0, measured quarterly on a rolling twelve month basis. EXHIBIT 10.4 EXHIBIT E PERMITTED INDEBTEDNESS Balance September 1822, 2007 2009 Indebtedness to US Bank NA Bullet Term Loan 2,538,479 539,697 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 4,000,000 Golden Corral Credit Facility Construction Phase 4,500,000 0 Term Loans 28,970,639 33,470,639 26,999,269 26,999,269 (up to $15,000,000 8,000,000 more may be borrowed) $ 38,009,118 31,538,966 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease Term Covington, KY (Riverview Hotel) $48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Remington Hotel Corporation 04/30/2020 Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Term Rent Per Month None EXHIBIT 10 (f) 2) EXHIBIT F EXHIBIT F SEVENTEENTH NINTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 92,500,000 Cincinnati, Ohio December 3October 21, 2007 2009 XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1October 21, 2010, the principal sum of FIVE MILLION DOLLARS Ninety Two Million Five Hundred Thousand Dollars ($5,000,00092,500,000), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Construction Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet LoansGolden Corral] dated as of October 1521, 2004 2009 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan Construction Loans evidenced hereby was were made and is are to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. As of October 21, 2009, as a result of the prior draws by the Borrower under the Loans and prior conversions of Construction Loans to Term Loans, of the maximum Ninety Two Million Five Hundred Thousand Dollar ($92,500,000) Construction Loan facility, (i) Eighty Four Million Five Hundred Thousand Dollars ($84,500,000) has been drawn by the Borrower under the Construction Loans and already been converted to Term Loans or currently remains outstanding as Construction Loans and (ii) a maximum of Eight Million Dollars ($8,000,000) still remains available to be drawn by the Borrower under the Construction Loans. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan Construction Loans as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Eighth Amended and Restated Revolving Credit Promissory Note dated as of September 27December 3, 2005 2007 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Eighth Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx, Vice President-Finance Address: 0000 Xxxxxxx Xxxxxx Cincinnati, Ohio 4520645206 EXHIBIT 10.4 EXHIBIT G-1 COST OF FUNDS RATE TERM LOAN PROMISSORY NOTE $ Cincinnati, Ohio 1, XXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before 1, (the “Maturity Date”), the principal sum of Dollars ($ ), together with interest thereon as hereinafter provided.
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Cash Flow Coverage Ratio. Not permit the ratio of (i) the Borrower’s Adjusted EBITDA plus operating lease payments less Maintenance Capital Expenditures maintenance capital expenditures equal to (50%) of depreciation minus less cash dividends to the Borrower’s shareholders minus less cash income taxes paid, to (ii) the sum of the Borrower’s scheduled principal payments on long term debt and capital lease obligations (excluding Revolving Loan principal payments) plus interest expense plus operating lease payments (in each case for the same period that the Borrower’s Adjusted EBITDA is measured), calculated in accordance with generally accepted accounting principles consistently applied in accordance with past practices on a rolling four (4) quarter basis, to be less than 1.10 to 1.0, measured quarterly on a rolling twelve month basis. Exhibit 10.1 EXHIBIT E PERMITTED INDEBTEDNESS Balance September 18October 21, 2007 2010 Indebtedness to US Bank NA Bullet 2009 Term Loan 2,538,479 $ 3,052,021 Revolving Loan (up to $5,000,000 may be borrowed) 2,000,000 Golden Corral $ 0 Stock Repurchase Loan Credit Facility: Interest Only Period $ 0 Term Loans $ 0 (up to $10,000,000 more may be borrowed) $ 0 Construction Loan Credit Facility Construction Phase 4,500,000 $ 3,000,000 Term Loans 28,970,639 33,470,639 $ 23,559,270 (up to $15,000,000 more may be borrowed) $ 38,009,118 26,559,270 $ 29,611,291 Capitalized Leases All obligations of the Borrower incurred in connection with any existing or future lease transactions capitalized or required to be capitalized on the Borrower’s books. books Contingent liability as assignor/guarantor of the following leases: Location Assignee Remaining Lease Term Covington, KY (Riverview Hotel) (renewal options aggregating 50 years) $48,072 per year Remington Hotel Corporation 04/30/2020 (renewal options aggregating 50 years) Lease liability for closed restaurants & other non-operating property (lease not presently assigned) Location Remaining Lease Term Rent Per Month None EXHIBIT 10 (f) 2) Exhibit 10.1 EXHIBIT F EXHIBIT F SEVENTEENTH TENTH AMENDED AND RESTATED REVOLVING CREDIT PROMISSORY NOTE $5,000,000.00 106,500,000 Cincinnati, Ohio December 3October 21, 2007 XXXXXX’X 2010 FXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before September 1April 15, 20102012, the principal sum of FIVE MILLION DOLLARS One Hundred Six Million Five Hundred Thousand Dollars ($5,000,000106,500,000), or such portion thereof as may be outstanding from time to time, together with interest thereon as hereinafter provided. This is the Revolving Construction Note referred to in, was executed and delivered pursuant to, and evidences indebtedness of the Borrower incurred under, that certain Second Amended and Restated Loan Agreement [Revolving and Bullet Loans] dated as of October 1521, 2004 2010 between the Borrower and the Bank, as the same has been and/or may be amended, restated, supplemented, renewed, or otherwise modified and in effect from time to time (the “Loan Agreement”), to which reference is hereby made for a statement of the terms and conditions under which the Revolving Loan Construction Loans evidenced hereby was were made and is are to be repaid and for a statement of the Bank’s remedies upon the occurrence of an Event of Default. Capitalized terms used herein, but not otherwise specifically defined, shall have the meanings ascribed to such terms in the Loan Agreement. As of October 21, 2010, as a result of the prior draws by the Borrower under the Loans and prior conversions of Construction Loans to Term Loans, of the maximum One Hundred Six Million Five Hundred Thousand Dollar ($106,500,000) Construction Loan facility, (i) Ninety One Million Five Hundred Thousand Dollars ($91,500,000) has been drawn by the Borrower under the Construction Loans and already been converted to Term Loans or currently remains outstanding as Construction Loans and (ii) a maximum of Fifteen Million Dollars ($15,000,000) still remains available to be drawn by the Borrower under the Construction Loans. The Borrower further promises to pay interest on the outstanding unpaid principal amount hereof from the date hereof until payment in full at the rate or rates from time to time applicable to the Revolving Loan Construction Loans as determined in accordance with the Loan Agreement; provided, however, that upon the occurrence and during the continuance of an Event of Default, the Borrower shall pay interest on the outstanding principal balance of this Revolving Note at the rate of interest applicable following the occurrence of an Event of Default as determined in accordance with the Loan Agreement. Interest on this Revolving Note shall be payable, at the times and from the dates specified in the Loan Agreement, on the date of any prepayment hereof, at maturity, whether due by acceleration or otherwise, and as otherwise provided in the Loan Agreement. From and after the date when the principal balance hereof becomes due and payable, whether by acceleration or otherwise, interest hereon shall be payable on demand. In no contingency or event whatsoever Exhibit 10.1 shall interest charged hereunder, however such interest may be characterized or computed, exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. In the event that such a court determines that the Bank has received interest hereunder in excess of the highest rate applicable hereto, such excess shall be applied in accordance with the terms of the Loan Agreement. The indebtedness evidenced by this Revolving Note is secured pursuant to the terms of the Loan Documents. The Borrower hereby waives demand, presentment, and protest and notice of demand, presentment, protest, and nonpayment. The Borrower further agrees, subject only to any limitation imposed by applicable law, to pay all expenses, including attorneys’ fees and legal expenses, incurred by the Bank in endeavoring to collect any amounts payable hereunder which are not paid when due, whether by acceleration or otherwise. IMPORTANT: This Revolving Note shall be deemed made in Ohio and shall in all respects be governed by and construed in accordance with the laws of the State of Ohio, including all matters of construction, validity and performance. Without limitation on the ability of the Bank to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Revolving Note shall be commenced and maintained exclusively in the District Court of the United States for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to which said party consents, if (a) served personally or by certified mail to the other party at any of its addresses noted herein, or (b) as otherwise provided under the laws of the State of Ohio. The interest rates and all other terms of this Revolving Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement. This Note amends and restates the Sixteenth Ninth Amended and Restated Revolving Credit Promissory Note dated as of September 27October 21, 2005 2009 given by the Borrower to the Bank, and evidences all amounts outstanding as of the date hereof under said Sixteenth Ninth Amended and Restated Revolving Credit Promissory Note. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. XXXXXX’X FXXXXX’X RESTAURANTS, INC. By: /s/ Xxxxxx X. Xxxxxx Xxxxxx Dxxxxx X. Xxxxxx, Vice President-President Finance Address: 0000 2000 Xxxxxxx Xxxxxx Cincinnati, Ohio 4520645206 EXHIBIT G-1 COST OF FUNDS RATE TERM LOAN PROMISSORY NOTE $ Cincinnati, Ohio 1, FXXXXX’X RESTAURANTS, INC., an Ohio corporation (the “Borrower”), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a national banking association formerly known as Firstar Bank, N.A. and Star Bank, National Association (the “Bank”), or it successors or assigns, on or before 1, (the “Maturity Date”), the principal sum of Dollars ($ ), together with interest thereon as hereinafter provided.
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