PROMISSORY
NOTE
| $3,000,000.00
|
May 22,
2009
Nashville,
Tennessee
|
FOR VALUE RECEIVED, the
undersigned, J. ALEXANDER’S
CORPORATION, a Tennessee corporation (“Borrower”), promises to pay to the
order of PINNACLE NATIONAL
BANK (“Lender”), in lawful currency of the United States of America, at
its principal office in Nashville, Tennessee, or at such other place as the
holder from time to time may designate in writing, the principal sum of THREE MILLION AND NO/100
($3,000,000.00) DOLLARS, together with interest thereon computed on the
unpaid principal balance from the date of disbursement hereunder at an annual
rate equal to LIBOR (as hereinafter defined) plus the Applicable Margin, as
defined in the Loan Agreement (as hereinafter defined). As used
herein, “LIBOR” shall mean the London Interbank Offered Rate for one (1) month
as published in The
Wall Street Journal, which is the British Bankers’ Association average of
interbank offered rates for dollar deposits in the London market on the date of
this instrument, or if such date is not a publication date, on the next
preceding publication date; provided, however, in no event shall the interest
payable hereunder be less than 4.60% per annum. The interest rate shall be
automatically adjusted on the tenth (10th) day of
each month after execution hereof until the Maturity Date, as hereinafter
defined, unless earlier accelerated, to the interest rate so calculated and in
effect on such date, or the next preceding date for which the LIBOR rate is
published, if no rate is published on such date.
Interest
shall be calculated on the basis of a three hundred sixty (360) day
year. Principal and interest shall be payable as
follows:
(a) Commencing
on June 22, 2009, and for the next six (6) months on the 22nd day for
each month, interest only shall due and payable on the outstanding principal
balance.
(b) Commencing
on December 22, 2009 and for the next fifty three (53) months, principal
payments of $55,555.56 plus interest shall be due and payable.
(c) The
entire unpaid principal and all accrued interest and other charges shall be due
and payable on May 22, 2014 (the “Maturity Date”).
The
indebtedness evidenced hereby, and all extensions, modifications and renewals
thereof, is secured by an Assignment and Security Agreement of even date
herewith, and certain additional security documents (the “Security
Instruments”).
The whole
of the principal sum and, to the extent permitted by law, any accrued interest,
shall bear, after default or maturity, interest at the lesser of (i) the highest
lawful rate then in effect pursuant to applicable law, or (ii) the rate that is
four percentage points (4%) in excess of the LIBOR, as it varies from time to
time.
Sums
shall be advanced hereunder subject to, and in accordance with, the conditions
and other requirements contained in the Loan Agreement of even date herewith
executed between Borrower and Lender (the “Loan Agreement”).
Principal
under this Note may be prepaid at any time without premium or other prepayment
charge. It is
understood, however, that there are certain mandatory prepayment provisions
which apply to this Note and are set forth in the Loan
Agreement.
Upon the
occurrence of an Event of Default (as defined in the Loan Agreement), then at
the election of the legal holder hereof, at any time thereafter made and without
demand or notice, the owner and holder of this Note shall have the right to
declare all sums unpaid hereon at once due and payable. In the event of such
Event of Default, and the same is placed in the hands of an attorney for
collection, or a suit is filed hereon, or if the proceedings are held in
bankruptcy, receivership, or the reorganization of Borrower, or any guarantor or
surety of Borrower, or other legal or judicial proceedings for the collection
hereof, Borrower agrees to pay in addition to the owner and holder of this Note,
all costs of collection, including reasonable attorneys’ fees.
Borrower
expressly waives presentment for payment, notice of nonpayment, protest, notice
of protest, bringing of suit, and diligence in taking any action to claim the
amounts owing hereunder and is and shall be jointly and severally, directly and
primarily, liable for the amount of all sums owing and to be owing hereon and
agrees that this Note, or any payment hereunder, may be extended from time to
time without affecting such liability.
During
the existence of an Event of Default, Lender or other owner and holder hereof is
expressly authorized to apply all payments made on this Note to the payment of
such part of any delinquency as it may elect.
The
remedies of the Lender as provided herein, in the Loan Agreement or the Security
Instruments, or any other instruments evidencing or securing this Note, shall be
cumulative and concurrent, and may be pursued singularly, successively or
together, at the sole discretion of the Lender, and may be exercised as often as
occasion therefore shall arise. No act or omission of the Lender,
including specifically any failure to exercise any right, remedy, or recourse,
shall be deemed to be a waiver or release of the same, such waiver or release to
be effected only through a written document executed by the Lender and then only
to the extent specifically recited therein. A waiver or release with
reference to any one event shall not be construed as continuing, as a bar to, or
as a waiver or release of, any subsequent right, remedy or recourse as to a
subsequent event. Notwithstanding anything herein to the contrary, in
no event shall interest payable hereunder be in excess of the maximum rate
allowed by applicable law. In the event any sums payable hereunder are
determined to be in excess of the maximum allowable rate, amounts in excess of
such maximum rate shall be deemed payments of principal.
Time is
of the essence of this Note. Where used herein, the singular shall refer to the
plural, the plural to the singular, and the masculine and feminine shall refer
to any gender. If Borrower is composed of more than one person or
entity, “Borrower” as used herein shall refer to any and all persons or entities
constituting Borrower, as the circumstances may require.
This Note
shall be governed by and construed under the laws of the State of Tennessee,
except as such may be pre empted by applicable law or regulation of the United
States of America governing the charging or receiving of interest.
The
provisions hereof shall be binding upon the parties, their successors and
assigns. The provisions hereof are severable such that the invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of the remaining provisions.
[Signature
Page Follows]
IN WITNESS WHEREOF, this
instrument has been executed on the day and year first above
written.
BORROWER:
J. ALEXANDER’S
CORPORATION
a Tennessee corporation
By: /s/ R. Gregory
Lewis
R. Gregory Lewis
Vice President – Finance,
Chief Financial Officer, and
Secretary