EXHIBIT 10.3(a)
LOAN AGREEMENT
BETWEEN
ROYAL SONESTA, INC.
AS BORROWER
SONESTA INTERNATIONAL HOTELS CORPORATION
AS GUARANTOR
AND
HIBERNIA NATIONAL BANK,
AS LENDER
EFFECTIVE DATE APRIL 1, 2002
CLOSING ATTORNEY
XXXXXXXX X. XXXXXX
CHAFFE, MCCALL, PHILLIPS, XXXXX & XXXXX, L.L.P.
0000 XXXXXX XXXXXX
XXX XXXXXXX, XXXXXXXXX 00000-0000
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2002 ROYAL SONESTA LOAN AGREEMENT
BE IT KNOWN, that on the days of March 2002, before us, the undersigned
Notaries Public duly commissioned and qualified, personally came and appeared:
ROYAL SONESTA, INC., a Louisiana corporation having its principal place of
business in New Orleans, Louisiana, TIN #00-0000000, herein represented by
its undersigned officer, duly authorized and acting pursuant to resolutions
of its Board of Directors, a certified copy of which is annexed hereto
("Borrower");
and
HIBERNIA NATIONAL BANK, a national banking association, organized and
existing under the laws of the United States of America, and domiciled in
the Parish of Orleans, State of Louisiana, with its principal office at 000
Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxx 00000, TIN #00-0000000,
represented herein by its duly authorized undersigned officer ("Bank");
and
SONESTA INTERNATIONAL HOTELS CORPORATION, a New York corporation having its
principal place of business in Boston, Massachusetts, TIN #000000000,
herein represented by its undersigned officer, duly authorized and acting
pursuant to resolutions of its Board of Directors ("Guarantor").
who covenant and agree that:
NOW, THEREFORE, in order to carry out and set forth the extension of credit
and, in consideration of the mutual benefits received or to be received by each
of them, Borrower, Guarantor and Bank do hereby enter into this 2002 Royal
Sonesta Loan Agreement ("2002 Agreement") and covenant and agree as follows:
ARTICLE I.
DEFINITIONAL PROVISIONS
SECTION 1.1 TERMS DEFINED ABOVE. As used in this 2002 Agreement, the
terms "Borrower", "Bank", "Guarantor" and "2002 Agreement" shall have the
meanings indicated above.
SECTION 1.2 DEFINITIONS. As used in this 2002 Agreement, the following
terms shall have the following meanings:
"AFFILIATE" shall mean any entity directly or indirectly controlled by
Guarantor.
"ARTICLES OF INCORPORATION" shall mean the instrument dated January 5,
1977, filed with the Louisiana Secretary of State in Record of Charters
Book 317.
"BANK'S COUNSEL" shall mean Chaffe, McCall, Xxxxxxxx, Xxxxx & Sarpy, L.L.P.
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"BUSINESS DAY" shall mean any day that is, not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of
Louisiana.
"BYLAWS" shall mean the regulations, ordinances, rules or laws adopted by
Borrower for its government.
"CAPITAL EXPENDITURES" shall mean, collectively, on a consolidated basis
for Borrower: (a) the aggregate expenditures for fixed assets; and (b)
Capitalized Lease Obligations.
"CAPITAL LEASE" shall mean, with respect to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee which
would, in accordance with GAAP, either be required to be classified and
accounted for as a capital lease on a balance sheet of such Person or
otherwise be disclosed as such in a note to said balance sheet, other than,
in the case of Borrower,, any such lease under which Borrower is the
lessor.
"CAPITAL LEASE OBLIGATION" shall mean, with respect to any Capital Lease,
the amount of the obligation of the lessee which would, in accordance with
GAAP, appear on a balance sheet of such lessee in respect of such Capital
Lease or otherwise be disclosed in a note to such balance sheet.
"CLOSING DATE" shall be a date designated by Bank's Counsel which shall be
on or before March __, 2002. Bank's Counsel shall give 3 days prior notice
of the Closing Date.
"CONTINUING GUARANTY" shall mean the continuing guaranty of the Guarantor
in favor of Bank dated of even date hereof.
"DEBT" shall have the meaning assigned to it in Section 2.1(b).
"DEBT SERVICE" shall mean, for any period, all interest expense for such
period exclusive of the principal payment due at maturity of Note.
"DEBT SERVICE COVERAGE" shall mean the ratio of Free Cash Flow divided by
Debt Service for the four consecutive calendar quarters ending on the last
day of such quarter.
"EBITA" shall mean earnings before interest expense, income tax expense and
depreciation and amortization expense and all other non cash items.
"EFFECTIVE DATE" shall mean April 1, 2002.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" shall mean any of the events or occurrences set forth in
Article VIII, Section 8.1.
"FINANCIAL STATEMENTS" shall mean the financial statements referred to in
Article VI, Section 6.2.
"FREE CASH FLOW" shall mean EBITA less cash income taxes.
"GAAP" shall mean generally accepted accounting principles in the United
States of America as from time to time in effect.
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"GOVERNMENTAL AUTHORITY" shall mean any municipal, parish, state or federal
governmental authority having jurisdiction over the Property, the Borrower
or the Guarantor.
"INDEBTEDNESS" shall mean any and all amounts owed or to be owed by
Borrower or Guarantor to Bank in connection with this 2002 Agreement, the
Guaranty, and all other liabilities of Borrower or Guarantor to Bank from
time to time existing, whether in connection with this or other
transactions.
"INTEREST PAYMENT DATE" shall mean the last day of March, June, September
and December.
"INTEREST RATE" shall mean interest equal to LIBOR plus 3% per annum
(floating daily).
"LEASE" shall mean the lease dated December 12, 1967 registered in COB
683D, folio 40, Orleans Parish as amended, granting the leasehold interest.
"LEASEHOLD INTEREST" shall mean Borrower's interest in the Property under
the Lease.
"LEASEHOLD MORTGAGE" shall mean the Mortgage of Leasehold Interest executed
by Borrower to secure the Note, which mortgage is dated of even date hereof
and encumbers the Leasehold Interest and improvements thereon.
"LIBOR" means the rate per annum at which Dollar deposits are offered to
prime banks in the London interbank market for a three month period.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on the
business, operations, financial condition of Borrower or Guarantor taken as
a whole, Borrower's and Guarantor's collective ability to pay the
Obligations in accordance with the terms thereof, the Collateral or the
Bank's Lien or the priority of any such Lien (except as otherwise provided
in the Security Instruments).
"MAXIMUM REVOLVING CREDIT LOAN AMOUNT" shall mean the sum of Five Million
and No/100 ($5,000,000.00) Dollars.
"NET INCOME" shall mean Borrower's net income before payment of interest
and federal and state income taxes.
"NOTE" shall mean the Revolving Credit Note.
"OBLIGATIONS" shall mean all Indebtedness, loans, advances, debts,
liabilities, and obligations, for monetary amounts (whether or not such
amounts are liquidated or determinable) owing by Borrower to Bank, and all
covenants and duties regarding such amounts, of any kind or nature, present
or future, whether or not evidenced by any note, agreement or other
instrument, arising under any of the Security Instruments. This term
includes, without limitation, all interest, charges, expenses, attorneys'
fees and any other sum chargeable to Borrower under any of the Security
Instruments.
"OPERATING CASH FLOW" shall mean income before taxes plus depreciation plus
other non-cash expenses, minus Capital Expenditures and excluding
extraordinary items.
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"PERSON" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof, or
any other form of entity or relationship.
"PROPERTY" shall mean Borrower's leasehold interest as lessee under the
Lease.
"REVOLVING CREDIT ADVANCE" shall have the meaning assigned to it in section
2.2 (a) hereof.
"REVOLVING CREDIT LOAN" shall mean the aggregate amount of Revolving Credit
Advances outstanding at any time up to the maximum of the Maximum Revolving
Credit Loan Amount.
"REVOLVING CREDIT NOTE" shall have the meaning assigned to it in Section
2.2(b) hereof.
"SECURITY INSTRUMENTS" shall mean the agreements or instruments described
or referred to in Article III hereof, and any and all other agreements or
instruments now or hereafter executed and delivered by Borrower in
connection with, or as security for the payment or performance of the Note
or this 2002 Agreement.
"TANGIBLE NET WORTH" shall mean the amount by which (a) the amount included
under total stockholders' equity on the balance sheet exceeds (b) the sum
of the following amounts as included on such balance sheet: (i) any
unamortized debt discount and expense, (ii) any cost of investments in
excess of net assets acquired at the time of acquisition, (iii) any
patents, patent applications, copyrights, trademarks, trade names,
goodwill, experimental or organizational expenses, and (iv) any other
intangible assets.
"TERMINATION DATE" shall mean March _____, 2005.
SECTION 1.3 OTHER DEFINITIONAL PROVISIONS.
(a) All terms defined in this 2002 Agreement shall have the defined
meanings when used in the Revolving Credit Note or in any certificates or other
documents made or delivered pursuant hereto unless the context shall otherwise
require.
(b) Words used herein in the singular, where the context so permits, shall
be deemed to include the plural and vice versa. Likewise, the definition of
words used in the singular herein shall also apply to such words when used in
the plural and vice versa, unless the context shall otherwise require.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this 2002 Agreement shall refer to this 2002 Agreement as a
whole and not to any particular provision of this 2002 Agreement.
(d) Section, subsection, schedule and exhibit references are to this 2002
Agreement unless otherwise specified.
ARTICLE II.
AMOUNT AND TERMS OF CREDIT
SECTION 2.1 LOAN. Subject to the terms and conditions of this Agreement,
and relying on the representations and warranties contained in this Agreement,
and provided no Event of Default exists, Bank agrees
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to make, and Borrower agrees to accept the Revolving Credit Loan in the
aggregate principal amount at any one time outstanding not to exceed Five
Million and No/100 ($5,000,000.00) Dollars. Prior to the Termination Date,
Borrower may utilize the Revolving Credit Loan by borrowing, repaying or
prepaying, and re-borrowing such Revolving Credit Loan in whole or in part, all
in accordance with the terms and conditions hereof. The Revolving Credit Loan
outstanding on the Termination Date shall be repaid in full on that date.
SECTION 2.2 REVOLVING CREDIT ADVANCES.
(a) Upon and subject to the terms and conditions herein, Bank agrees to
make available, at any time from time to time on any Business Day until the
Termination Date, upon the request of Borrower therefor, advances (each, a
"Revolving Credit Advance") in an aggregate amount outstanding which shall not
at any given time exceed the Maximum Revolving Credit Loan Amount. In the event
the Revolving Credit Loan exceeds the Maximum Revolving Credit Loan Amount,
Borrower shall pay to Bank sufficient sums to reduce the Revolving Credit Loan
to the Maximum Revolving Credit Loan Amount. Subject to the provisions of
Section 2.3 hereof and until all amounts outstanding in respect of the Revolving
Credit Loan shall become due and payable on the Termination Date, Borrower may
from time to time borrow, repay and reborrow under this Section 2.2 (a) up to
the Maximum Revolving Credit Loan Amount. Each Revolving Credit Advance shall be
made on notice, given no later than 11:00 A.M. (New Orleans time) on the
Business Day of the proposed Revolving Credit Advance, by Borrower to Bank. Each
such notice (a "Notice of Revolving Credit Advance") shall be in writing or by
telephone to Bank and such requests shall be fully authorized by Borrower if
made by any one of the persons designated hereinbelow. Bank shall, before 5:00
P.M. (New Orleans time) on the date of the proposed Revolving Credit Advance,
upon fulfillment of the applicable conditions set forth in Section 3, wire to a
bank designated by the Borrower and reasonably acceptable to Bank the amount of
such Revolving Credit Advance. Bank shall have the right, but not the
obligation, to verify any telephone requests by calling the person who made the
request at the telephone number hereinafter set forth opposite his name.
The persons who are authorized by Borrower to make personal, written, or
telephonic requests of Bank for reborrowing are the following persons:
Xxxxx X. Xxxxxxxxx Chairman of the Board
617 421-5400
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Xxxxx X. Xxxxxxxxx Vice-President & Secretary
617 421-5400
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Boy xxx Xxxx Vice President & Treasurer
617 421-5400
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Xxxxx Xxxxxxxxx Controller
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000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
(b) The Revolving Credit Loan made by Bank shall be evidenced by a
promissory note in the amount of $5,000,000.00 to be executed, dated and
delivered by Borrower at the time of this 2002 Agreement, the form of which its
attached hereto and made a part hereof as Exhibit A with the blanks
appropriately filled in conformity herewith (the "Revolving Credit Note"). The
Revolving Credit Note shall be payable to the order of Bank and shall represent
the obligation of Borrower to pay the amount of the Maximum Revolving Credit
Loan Amount or, if less, the aggregate unpaid principal amount of all Revolving
Credit Advances made by Bank to Borrower with interest thereon as prescribed in
Section 2.6 (the "Debt"). The date and amount of each Revolving Credit Advance
and each payment of principal with respect thereto shall be recorded on the
books and records of Bank, which books and records shall constitute PRIMA FACIE
evidence of the accuracy of the information therein recorded.
(c) Borrower shall be able to borrow and Bank agrees to lend an amount the
sum of which may be a maximum of the Maximum Revolving Credit Loan Amount.
(d) All reborrowings and/or prepayments shall be in the amount of Fifty
Thousand ($50,000.00) Dollars or multiples thereof.
SECTION 2.3 OPTIONAL PREPAYMENT: PREPAYMENT PREMIUM. Borrower shall have
the right at any time to voluntarily prepay the Revolving Credit Loan in whole
or in part, without premium or penalty. At any time that Borrower has paid the
Revolving Credit Loan in full and there are no outstanding fees or sums due
under the Revolving Credit Loan, Borrower shall have the right of canceling this
2002 Agreement by giving five (5) days prior written notice to Bank.
SECTION 2.4 USE OF PROCEEDS. The proceeds of the Revolving Credit Loan
shall be used for general corporate purposes of the Borrower and Guarantor in
accordance with the terms set forth in this 2002 Agreement, including without
limitation such legal uses that may arise in the ordinary course of business.
SECTION 2.5 SINGLE LOAN. The Debt and all of the other Obligations of
Borrower arising under this 2002 Agreement and the other Security Instruments
shall constitute one general obligation of Borrower secured by all of the
Security Instruments. The entire unpaid balance of the Revolving Credit Loan
shall be due and payable on the Termination Date.
SECTION 2.6 INTEREST. The Revolving Credit Note shall bear interest on
the outstanding principal balance at the Interest Rate. The Interest Rate on the
Revolving Credit Note shall be adjusted from time to time on and as of the
effective date of any change in LIBOR, and interest shall be assessed on a
simple interest basis utilizing a 360-day daily interest factor over the number
of days in a calendar year. Interest shall be payable quarterly in arrears on
the last day of March, June, September and December of each year, and at the;
Termination Date (whether by acceleration or otherwise) ("Interest Payment
Date").
SECTION 2.7 COMMITMENT TERMINATION DATE. The entire unpaid principal
balance plus all accrued interest and any unpaid late charges and fees shall be
due and payable in full on the Termination Date.
SECTION 2.8 COMMITMENT FEE. Borrower shall pay Bank a commitment fee of
$2,500.00 ("Commitment Fee"). One half of the Commitment Fee shall be due at the
issuance of a commitment by Bank and the other half shall be due and payable on
even date hereof.
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SECTION 2.9 UNDISBURSED COMMITMENT FEE. Borrower shall pay Bank a
commitment fee on each Interest Payment Date on the undisbursed portion of the
Revolving Credit Loan in an amount equal to .65 (.65%) percent per annum of the
undisbursed portion of the Revolving Credit Loan ("Undisbursed Commitment Fee").
SECTION 2.10 RECEIPT OF PAYMENTS. Borrower shall make each payment under
this 2002 Agreement not later than 2:00 P.M. (New Orleans time) on the day when
due in lawful money of the United States of America in immediately available
funds to Bank.
SECTION 2.11 APPLICATION OF PAYMENTS. Payments shall be applied in the
following order: (i) to the then due and payable fees and expenses; (ii;) to the
then due and payable interest payments on the Revolving Credit Loan; and (iii)
to the principal on the Revolving Credit Loan. Bank is authorized to, and at its
option may, make advances on behalf of Borrower for payment of all fees,
including attorney fees, the Commitment Fee, the Undisbursed Commitment Fee,
expenses, charges, costs, principal and interest incurred by Borrower hereunder.
Such advances shall be made when and as Borrower fails to promptly pay such
fees, expenses, charges, costs, principal and interest and, at Bank's option and
to the extent permitted by law, shall be deemed Revolving Credit Advances
constituting part of the Revolving Credit Loan hereunder.
SECTION 2.12 INDEMNITY. Borrower shall indemnify and hold Bank harmless
from and against any and all suits, actions, proceedings, claims, damages,
losses, liabilities and expenses (including, without limitation, reasonable
attorneys' fees and disbursements, including those incurred upon any appeal)
which may be instituted or asserted against or incurred by Bank as the result of
its having entered into any of the Security Instruments or extended credit
hereunder; provided, HOWEVER, that Borrower shall not be liable for such
indemnification to Bank to the extent that any such suit, action, proceeding,
claim, damage, loss, liability or expense results from Bank's gross negligence
or willful misconduct.
SECTION 2.13 ACCESS. Bank and any of its officers, employees and/or agents
shall have the right, exercisable as frequently as Bank determines to be
appropriate, during normal business hours (or at such other times as may
reasonably be requested by Bank), to inspect the properties and facilities of
Borrower and to inspect, audit and make extracts from all of Borrower's records,
files and books of account. Borrower and Guarantor shall deliver any document or
instrument reasonably necessary for Bank to obtain records from any service
bureau maintaining records for Guarantor and Borrower and shall maintain
duplicate records or supporting documentation on media, including., without
limitation, computer tapes and discs owned by Borrower. Borrower and Guarantor
shall instruct their banking and other financial institutions to make available
to Bank such information and records as Bank may reasonably request.
ARTICLE III.
SECURITY INSTRUMENTS
SECTION 3.1 As security for the Revolving Credit Loan, Borrower has
heretofore furnished to Bank the following Security Instruments each duly and
validly executed and each in form and substance satisfactory to Bank, and in
sufficient executed counterparts for recording purposes:
(a) Note
(b) Leasehold Mortgage
(c) Continuing Guaranty executed by Guarantor
(d) UCC-1 Financing Statement
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 In order to induce Bank to renew and extend the Loan
Agreement, Borrower and Guarantor hereby represent, warrant and covenant to Bank
as follows:
(a) STATUS OF BORROWER AND GUARANTOR. The Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of Louisiana.
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of New York. Both Borrower and Guarantor
have all requisite corporate power and authority to carry on their respective
businesses as now conducted and propose to be conducted and to own and operate
their properties. Borrower and Guarantor are licensed or qualified as foreign
corporations where the conduct of their business or the ownership of their
properties requires such licensing or qualification.
(b) NO LEGAL BAR OR RESULTANT LIEN. The 2002 Agreement, the Revolving
Credit Note, the Security Instruments and all other documents which have been or
which were executed by Borrower and/or Guarantor in connection with the 2002
Agreement do not and will not violate the Borrower's or the Guarantor's Articles
of Incorporation or their Bylaws, or any contract, agreement, law, regulation,
order, injunction, judgment, decree or writ to which Borrower or Guarantor is
subject, or any indenture, mortgage, deed of trust, credit agreement, lease or
other instrument to which Borrower or Guarantor or any of their property is
bound, and do not conflict with or result in a breach of or constitute a default
under any such instrument,, or result in the creation or imposition of any lien
upon the Property other than those contemplated by this 2002 Agreement.
(c) REPORTS/FINANCIAL STATEMENTS. All information, reports, papers,
financial statements and data given by Borrower and Guarantor to Bank pursuant
to this 2002 Agreement, or otherwise provided, were prepared in accordance with
GAAP to the extent applicable and are complete, accurate and correct in all
material respects. There are no known material contingent liabilities of
Borrower or Guarantor not reflected in the Financial Statements, nor has there
been any adverse material change in Borrower's or Guarantor's condition since
December 31, 2001. In addition, no information, exhibit or report furnished by
Borrower or Guarantor to Bank in connection with the negotiation of this 2002
Agreement contains any material misstatement of fact or omits to state a
material fact or any fact necessary to make the statements contained therein not
misleading.
(d) DEFAULTS. Neither Borrower nor Guarantor is in default, in any respect
which materially and adversely affects their business, properties, operations or
condition, financial or otherwise, under any indenture, mortgage, deed of trust,
contract, agreement or other instrument to which Borrower or Guarantor is a
party or by which they are bound, nor, in any respect which materially and
adversely affects their business, properties, operations or condition, financial
or otherwise any order, writ, injunction, judgment, decree or any statute, rule
or regulation.
(e) TAXES/GOVERNMENTAL CHARGES. With immaterial exceptions (no such
exceptions being known to Borrower or Guarantor) Borrower and Guarantor have
filed or caused to be filed all federal, state and local tax returns and reports
required to be filed, and have paid all taxes, assessments, fees and other
governmental charges levied upon Borrower or Guarantor or their properties or
income, which are due and payable, including interest and penalties, or has
provided adequate reserves for the payment thereof.
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(f) BORROWER'S TITLE. Borrower has good and merchantable title to all
leases affecting the Property to which it is a party as lessee including the
leasehold interest subject to the Collateral Leasehold Mortgage, free and clear
of all liens and encumbrances, and Borrower has not conveyed or encumbered, as
of the date hereof, said leasehold interest in any way, except pursuant to the
Collateral Leasehold Mortgage which ranks as a first mortgage on the leasehold
interests mortgaged therein. None of such leases contains any provision
restricting the incurrence of indebtedness by Borrower.
(g) SUITS. There are no actions, suits or proceedings pending, at law or
in equity, or before any Governmental Authority, or, to the knowledge of
Borrower or Guarantor, threatened against Borrower or Guarantor or any of
Borrower's or Guarantor's property, or to the knowledge of Borrower or Guarantor
involving the validity or enforceability of the Leasehold Mortgage, or the
priority of the liens thereof, which, if successful, would have a Material
Adverse Effect.
(h) GOVERNMENTAL CONSENT. ETC. Neither Borrower nor Guarantor is required
to obtain any order, consent, approval or authorizatiion of, or required to make
any declaration or filing with any Governmental Authority or Persons in
connection with the execution or delivery of the Revolving Credit Note pursuant
hereto, or in connection with the execution and delivery of the Security
Instruments or the granting of the security interests pursuant thereto other
than routine periodic filings with Governmental Authorities, which filings have
been or shall be duly made by the Borrower and Guarantor.
(i) PATENTS. TRADEMARKS. Borrower owns, possesses or has the right to use
all the patents, trademarks, service marks, trade names, copyrights and
licenses, and rights with respect to its business which the failure to so own or
possess might have a Material Adverse Effect.
(j) OTHER AGREEMENTS. Neither Borrower nor Guarantor is a party to any
contract or agreement made other than in the ordinary course of business which,
in the opinion of Borrower or Guarantor have a Material Adverse Effect.
(k) NO OFFER. Neither the Borrower nor anyone acting on its behalf has
directly or indirectly offered the Revolving Credit Note thereof or any similar
securities for sale to or solicited any offer to buy any of the same from anyone
other than Bank.
(1) BROKERS, ETC. Borrower has not dealt with any broker, finder,
commission agent or other similar person in connection with the Revolving Credit
Loan or the transactions contemplated by this 2002 Agreement.
(m) FRANCHISES. LICENSES, ETC. Borrower and Guarantor have all necessary
franchises, permits, licenses and other rights necessary in connection with the
conduct of their business.
(n) REGULATION U. ETC. Borrower neither owns nor has any present intention
of acquiring any "margin stock" within the meaning of Regulation U (12 CFR Part
221) of the Board of Governors of the Federal Reserve System (therein called
"margin stock"). If requested by Bank the Borrower will furnish promptly to Bank
a statement in conformity with the requirements of Federal Reserve Form U-1. For
purposes of this representation, shares of stock of Borrower are not deemed to
be margin stock.
(o) EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974. Neither Borrower nor
Guarantor has incurred (i) any material accumulated funding deficiency within
the meaning of ERISA, or (ii) any material liability to the Pension Benefit
Guaranty Corporation established under the Act (or any successor thereto) in
connection with any employee benefit plan established or maintained by either of
them, nor has Borrower or
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Guarantor had any tax assessed against it by the Internal Revenue Service for
any alleged violation under Section 4975 of the Internal Revenue Code. To
Borrower's and Guarantor's knowledge, no prohibited transaction within the
meaning of such Section 4975 has occurred with respect to any employee benefit
plan established or maintained by the Borrower.
(p) BINDING OBLIGATIONS. The execution, delivery and performance of this
2002 Agreement, and all other documents executed or to be executed by Borrower
and Guarantor have been duly authorized by all necessary corporate action and
constitute valid and binding obligations of Borrower and Guarantor, enforceable
in accordance with their respective terms.
(q) CONTINUING GUARANTY. The Continuing Guaranty secures all amounts
heretofore advanced by Bank to Borrower and will secure any and all amounts
advanced by Bank to Borrower pursuant to the terms of this 2002 Agreement,
together with all fees and charges thereon.
ARTICLE V.
CONDITIONS PRECEDENT
SECTION 5.1 CONDITION TO LOAN. Notwithstanding any provision of this 2002
Agreement and without affecting in any manner the rights of Bank hereunder,
unless and until the hereinbelow set forth conditions are satisfied and there
shall hive been delivered to Bank evidence in form and substance satisfactory to
Bank, Borrower shall have no rights to obtain any advances of the Revolving
Credit Loan and Bank shall not be obligated to fund the Revolving Credit Loan
hereunder, the conditions being the receipt by Bank of the following:
(a) REPRESENTATIONS. WARRANTIES AND COVENANTS. The representations,
warranties and covenants of Borrower and Guarantor set forth in this 2002
Agreement, in the Security Instruments and in any other documents furnished to
Bank heretofore or in connection herewith, to the extent they apply, shall be
true and correct as of this date and with the same effect as though such
representations, warranties and covenants had been made on and as of such date.
(b) DOCUMENTS TO BE EXECUTED AND DELIVERED.
(i) Borrower shall have duly and validly issued, executed and
delivered to Bank
(a) the Revolving Credit Note,
(b) the 2002 Agreement,
(c) Leasehold Mortgage,
(d) Corporate Resolutions, and
(e) UCC-1 Financing Statement
(ii) Guarantor shall have executed the
(a) 2002 Agreement,
(b) Corporate Resolutions, and
(c) Guaranty, and
(iii) Borrower and Guarantor shall have executed the Security
Instruments which may be necessary to secure the Revolving Credit Loan and shall
have delivered all of the above referenced documents and the Security
Instruments to the Bank.
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(c) LANDLORD'S ESTOPPEL CERTIFICATE. Borrower shall have delivered an
estoppel certificate from Aetna Life Insurance Company, Landlord under the
Lease, verifying that (i) the Lease is in full force and effect, (ii) Borrower
is not in default of any of the terms of the Lease, and that rent has been paid
to date, and (iii) Landlord will use its best efforts to deliver to Bank a copy
of any notice of default sent in accordance with the Lease to Borrower.
(d) PAYMENT OF TAXES. Upon request of Bank, Borrower shall. deliver to
Bank proof of payment of all personal property and all franchise taxes.
(e) INSURANCE AND EXTERMINATION CONTRACT. Upon request of Bank, Bank shall
have been furnished with duplicate insurance policies or certificates of
insurance evidencing that Borrower maintains the insurance coverage described in
this 2002 Agreement and with an extermination contract complying with the
requirements of Section 6.15 hereof.
(f) NO DEFAULT. At the time of this 2002 Agreement or the funding of the
Revolving Credit Note, no Event of Default shall have occurred and be
continuing, and there shall not have occurred any condition, event or act which
constitutes or with notice or lapse of time (or both) would constitute an Event
of Default in this 2002 Agreement, in the Lease, or in any other agreement which
would have a Material Adverse Effect.
(g) NO MATERIAL ADVERSE CHANGES. Prior to the execution of this 2002
Agreement and of the Revolving Credit Note, there shall not have occurred, in
the sole opinion of Bank, any material adverse changes, either in any case or in
the aggregate, in the assets, liabilities, financial condition, business,
operation, affairs or circumstances of Borrower from those reflected in the
financial statements or by the facts warranted or represented in any Security
Instrument or this 2002 Agreement.
(h) COUNSEL FOR BANK. All legal matters incident to the transactions
herein contemplated shall be reasonably satisfactory to Bank's Counsel.
(i) OPINIONS. Bank shall have received the favorable opinion of counsel
for Borrower and for the Guarantor as Bank may require, dated as of the Closing
Date and in form attached hereto as Exhibit B.
(j) RESOLUTIONS. Borrower and Guarantor shall have delivered to Bank
resolutions of the boards of directors of Borrower and Guarantor, certified by
the Secretary or Assistant Secretary of Borrower and Guarantor, as of the
Closing Date, to be duly adopted and in full force and effect on such date,
authorizing (i) the consummation of each of the transactions contemplated by
this 2002 Agreement and (ii) specific officers to execute and deliver this 2002
Agreement and the Revolving Credit Note and any other required documents.
(k) OUTSIDE COUNSEL FEES. Payment by Borrower of all reasonable fees and
expenses of Bank's outside counsel, Chaffe, McCall, Xxxxxxxx, Xxxxx & Xxxxx,
L.L.P.
(l) CERTIFICATE OF INCUMBENCY. Certificates of the Secretary or an
Assistant Secretary of Borrower and Guarantor, dated the Closing Date, as to the
incumbency and signatures of the officers of Borrower and Guarantor executing
this 2002 Agreement, the Revolving Credit Note, any of the required documents
and any other certificate or other document to be delivered pursuant hereto or
thereto, together with evidence of the incumbency of such Secretary or Assistant
Secretary.
(m) INSPECTION AND INSPECTION FEE. Bank's inspector shall perform
inspections annually, to be billed to and paid for by Borrower, upon completion
of each inspection.
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ARTICLE VI.
AFFIRMATIVE COVENANTS
SECTION 6.1 OBLIGATION FOR COSTS. Borrower will promptly pay or will
cause to be paid all reasonable legal costs and fees incurred by Bank in
connection with the preparation of this 2002 Agreement and any and all Security
Instruments contemplated hereby (including any amendments). Borrower will, upon
request, promptly reimburse Bank for all amounts expended, advanced or incurred
by Bank (i) to satisfy any obligation of Borrower under this 2002 Agreement or
any other Security Instrument, or to protect the Property of Borrower, or (ii)
after an Event of Default to collect the Revolving Credit Note or to enforce the
rights of Bank under this 2002 Agreement or any other Security Instruments,
which amounts will include all court costs, reasonable fees of attorneys,
auditors and accountants, and investigation expenses incurred by Bank in
connection with any such matters, together with interest.
SECTION 6.2 FINANCIAL STATEMENTS. Borrower and Guarantor will maintain
their financial reporting in accordance with GAAP consistently applied, and
Borrower and Guarantor will furnish or cause to be furnished to Bank the
following reports:
(a) ANNUAL REPORTS. As soon as available and in any event within ninety
(90) days after the end of each fiscal year, (i) internally prepared financial
statements of Borrower's operation of the Property which shall contain
statements of sources and uses of funds prepared by the local controller,
prepared in reasonable detail and in accordance with GAAP consistently applied,
and (ii) audited consolidated financial statements of Guarantor together with
all notes thereto, prepared in reasonable detail and in accordance with GAAP
consistently applied and duly certified by a certified independent public
accountant of national standing who shall be selected by Borrower and the
Guarantor, as the case may be, and shall be reasonably acceptable to Bank, which
statements shall be accompanied by a statement of such accountants that the
examination made by them in certifying such statements did not disclose the
existence of any condition or event which constitutes an Event of Default or
which, after notice or lapse of time or both, would constitute an Event of
Default, or, if an Event of Default is disclosed, a statement specifying the
nature and period of existence of an Event of Default.
(b) QUARTERLY REPORTS. As soon as reasonably possible, and in any event
within forty-five (45) days after the end of the first three calendar quarters
in each fiscal year, consolidated financial statements of Borrower and Guarantor
prepared in reasonable detail and in accordance with GAAP and certified by the
chief financial officer of Borrower and Guarantor, which statements shall
contain balance sheets as of the end of such accounting period, statements of
profit and loss for the period from the beginning of the fiscal year to the end
of such calendar quarter, and statements of sources and uses of funds.
(c) MONTHLY REPORT. As soon as reasonably possible, and in any event
within thirty (30) days after the end of each calendar month in each fiscal
year, financial statements of Borrower prepared in reasonable detail and in
accordance with GAAP and certified by the local comptroller of Borrower, which
statements shall contain statements of profit and loss for the period from the
beginning of such month and such fiscal year to the end of such calendar month.
(d) OFFICER'S CERTIFICATE. With each report submitted pursuant to Section
6.2 (a) and (b) Borrower and Guarantor shall provide to Bank, a Chief Financial
Officer's Certificate of the principal financial officer of Borrower and
Guarantor evidencing compliance with the financial covenants of this 2002
Agreement by calculating the actual results for the financial period, as well as
indicating whether or not the Borrower or Guarantor is in default of any of
their Obligations, substantially in the form of Exhibit C attached hereto.
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(e) ADJUSTMENT COMPUTATIONS. With each report submitted pursuant to
Section 6.2(a) and (b), a schedule in form and scope satisfactory to Bank,
certified by the principal financial officer of the Borrower and the Guarantor,
setting forth data sufficient to demonstrate compliance by the Borrower and
Guarantor with this 2002 Agreement.
(f) SCHEDULE OF INSURANCE. With each report submitted pursuant to Section
6.2(a), a schedule setting forth data sufficient to demonstrate compliance with
Section 6.6, which schedule shall include the name of the insurer, the amount
and nature of the coverage and the party named as loss payee under each
insurance policy in force as at the end of the Borrower's most recent fiscal
year.
SECTION 6.3 CORPORATE MATTERS. Borrower will do or cause to be done all
things necessary to preserve, renew and keep in full force and effect Borrower's
corporate existence, will maintain and preserve in full force and effect all
rights, licenses, patents and franchises material to Borrower's business, and
will comply, with all applicable laws and regulations having a material effect
on its business.
SECTION 6.4 MAINTENANCE OF PROPERTIES. Borrower will maintain, preserve,
protect and keep all properties used or useful in the conduct of its business in
good repair, working order and condition, and from time to time make such
repairs, renewals, replacements and improvements thereto as may be necessary or
advisable to conduct such business.
SECTION 6.5 TAXES. Borrower shall provide evidence that the Orleans
Parish ad valorem and personal property taxes for the year 2002 have been paid.
Borrower will pay or cause to be paid when due, all taxes, assessments,
governmental charges or levies imposed upon it or on any of its properties
provided, however, Borrower shall have the right to contest such in good faith.
Upon request, Borrower will furnish Bank with such documentation as Bank may
require in order to establish and verify that all such taxes, assessments,
charges or levies have been paid.
SECTION 6.6 INSURANCE. Borrower will keep its :insurable properties
insured by financially sound and reputable insurers reasonably satisfactory to
Bank against such risks and in such amounts as is required by the Lease but at
least to the extent customary with respect to like properties of companies
conducting similar business. Borrower will maintain in full force and effect
public liability and workmen's compensation insurance to the extent customary
with respect to companies conducting similar businesses. All policies shall,
subject to the rights of Borrower's Lessor and the Mortgagee of such Lessor, be
endorsed in favor of Bank as beneficiary, mortgage loss payee, or as additional
insured whichever is appropriate, which policy shall not be modified or
cancelled without giving Bank at least thirty (30) days prior written notice
thereof. The Borrower shall procure and forward to the Bank original paid up
insurance policies or certificates of such policies from companies having the
Best's rating of A- IX or higher with a company acceptable to Bank, licensed to
do business in Louisiana, in amounts, in form and substance, and with expiration
date acceptable to -the Bank and containing a noncontributory standard mortgagee
clause or its equivalent in a form satisfactory to the Bank, or the statutory
mortgagee clause if any, required in any state where the Project is located, or
a mortgagee's loss payable endorsement, in favor of the Bank, providing the
following types of insurance on the Project:
(a) PROPERTY HAZARD INSURANCE. Property hazard insurance, in each case
affording insurance against loss or damage by fire, lightning, theft, sprinkler
leakage, vandalism and malicious mischief and such other perils as are included
in so-called "all risks" or "extended coverage" and against such other insurable
perils as, under good insurance practices, from time to time are insured against
for properties of similar character and
141
location; such insurance to be not less than 95% of the full replacement cost of
the Property without deduction for depreciation; said policy to contain
replacement costs and stipulated value endorsements.
(b) FLOOD INSURANCE. Insurance against flood, not less than $10,000,000.00
or the full replacement cost of the Property or the maximum amount available,
whichever is lesser.
(c) COMPREHENSIVE GENERAL AUTOMOBILE AND LIABILITY INSURANCE.
Comprehensive public liability insurance with respect to the Property and the
operations related thereto, whether conducted on or off the Property, against
liability for personal injury (including bodily injury and death) and property
damage, of not less than $1,000,000.00 per occurrence and in the aggregate,
combined bodily injury and property damage; such comprehensive public liability
insurance to be on a per occurrence basis and to specifically include but not be
limited to water damage liability, products liability, motor vehicle liability
for all owned and non-owned vehicles, including rented and leased vehicles, and
contractual indemnification.
(d) BUSINESS INTERRUPTION. Business income loss insurance with coverage
for at least six months.
(e) OTHER INSURANCE. Such other insurance on the Property or any
replacements or substitutions therefor and in such amounts as may from
time-to-time be reasonably required by Bank against other insurable casualties
which at the time are commonly insured against in the case of premises similarly
situated, due regard being given to the height and type of the Property, its
construction, location, use and occupancy, or any replacements or substitutions
therefor.
SECTION 6.7 PAYMENT OF AMOUNTS DUE, ETC. Borrower and Guarantor will make
all payments of interest on the Revolving Credit Note in accordance with the
terms hereof and thereof and will observe, perform and comply with each of the
covenants, terms and conditions contained herein, therein and in all other
documents and instruments required hereby or incident or collateral hereto.
Borrower and Guarantor will make all payments on account of principal required
to be made in order to reduce the unpaid principal balance to the Maximum
Revolving Credit Loan Amount.
SECTION 6.8 INFORMATION AND INSPECTION. Borrower and Guarantor will
furnish to Bank from time to time with reasonable promptness, upon the request
of Bank, full information pertinent to any covenant, provision or condition
hereof or to any matter in connection with their businesses and, at all
reasonable times and as often as Bank shall reasonably request, permit any
authorized representative designated by Bank to visit and inspect any of their
properties, including their books (and to make extracts therefrom), and to
discuss their affairs, finances and accounts with their officers. Borrower and
Guarantor will, in addition, furnish to Bank with reasonable promptness such
financial information as is prepared regularly by Borrower or Guarantor on a
monthly basis as Bank shall reasonably request.
SECTION 6.9 COMPLIANCE WITH AGREEMENT, ETC. Borrower and Guarantor will
immediately advise Bank of any event which constitutes or, after notice or lapse
of time or both, would constitute an Event of Default or a default in the
performance by Borrower or Guarantor of any covenant or agreement contained in
any other agreement which is material to their businesses to which Borrower or
Guarantor is a party or by
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which Borrower or Guarantor is bound. Borrower shall give Bank immediate notice
of any notice of any default under the Lease.
SECTION 6.10 LEASE. Borrower shall maintain the Lease in full force and
effect and shall not amend, alter or modify without the prior written consent of
Bank. Borrower shall exercise its option to renew the Lease at least thirty (30)
days prior to, the required notice time period set forth in the Lease and shall
deliver to Bank a duplicate original of the certified notice to exercise
Borrower's option to extend the Lease within five (5) days of the date that it
is mailed.
SECTION 6.11 FINANCIAL COVENANTS OF GUARANTOR.
(a) FINANCIAL RATIOS. Guarantor covenants and agrees that until the
Termination Date, Guarantor shall maintain at all times the following financial
ratios and covenants:
(i) TOTAL LIABILITIES TO TANGIBLE NET WORTH. The Guarantor's
ratio of current liabilities plus the aggregate principal amount of consolidated
long term debt of the Guarantor (including subsidiaries) to consolidated
Tangible Net Worth shall equal 5 to 1.0 or less, tested quarterly.
(ii) TANGIBLE NET WORTH. A total Tangible Net Worth equal to or
greater than $22,000,000.00 until the Termination Date, tested quarterly.(b)
DIVIDENDS. Guarantor shall have the right of distributing dividends and/or
purchasing stock from operations in an aggregate amount not to exceed
$1,500,000.00 in any fiscal year ("Dividend and Stock Purchase Allowance").
(b) ADDITIONAL DEBT. Guarantor covenants and agrees that until the
Termination Date, Guarantor will not enter into or incur any new or additional
indebtedness without Bank's written approval.
SECTION 6.12 FINANCIAL COVENANTS OF BORROWER.
(a) FINANCIAL RATIOS. Borrower covenants and agrees that until the
Termination Date, Borrower shall maintain at all times the following financial
ratios and covenants.
(i) TOTAL LIABILITIES TO TANGIBLE NET WORTH. Borrower's ratio of
current liabilities plus the aggregate principal amount of long term debt
(including capitalized lease payables) plus the aggregate amount of indebtedness
to Affiliates to Tangible Net Worth shall equal 3.5 to 1.0 or less, tested
quarterly.
(ii) TANGIBLE NET WORTH.. A total Tangible Net Worth equal to or
greater than $4,000,000.00 until the Termination Date, tested quarterly.
(iii) DEBT SERVICE COVERAGE. Borrower shall maintain a Debt Service
Coverage ratio of no less than 2:1. The Debt Service Coverage ratio is to be
determined at the end of each fiscal quarter for the four quarter period ending
on the last day of such fiscal quarter.
(b) NET INCOME REQUIREMENT. For each year Borrower's Net Income shall
equal or exceed $1,000,000.00.
(c) Borrower Dividends to Guarantor/INTERCOMPANY TRANSFERS. Provided there
is no Event of Default, Borrower shall be permitted to make dividends to
Guarantor and intercompany transfers, said transfers to be limited to a maximum
of 100% of Net Income plus Depreciation and advances under the Revolving Credit
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Loan minus Capital Expenditures and repayments under the Revolving Credit Loan
during any fiscal year. Upon the occurrence of an Event of Default and during
its continuance, Borrower shall be prohibited from paying any dividends to
Guarantor or making any intercompany transfers without Bank's written approval
which approval may be withheld in its sole determination.
(d) BORROWER ADDITIONAL DEBT. Borrower shall be permitted to incur a
maximum of $1,000,000.00 of additional debt which debt must be subordinate to
Bank's lien.
SECTION 6.13 ADDITIONAL DOCUMENTATION. Borrower agrees to promptly cure
any defects in the creation and issuance of the Revolving Credit Note and the
execution and delivery of the Security Instruments and this 2002 Agreement.
Borrower and Guarantor shall, at their expense, promptly execute and deliver to
Bank upon Bank's reasonable request all such other and further documents,
agreements and instruments in compliance with or accomplishment of the covenants
and agreements of Borrower in the Security Instruments and the 2002 Agreement,
or to further evidence and more fully describe the collateral intended as
security for the Revolving Credit Note, or to correct any omissions in the
Security Instruments or any amendments thereto or in the 2002 Agreement, or more
fully to state the security obligations set out herein or in any of the Security
Instruments, or to perfect, protect or preserve any liens created pursuant to
any of the Security Instruments, or to make any recordings, to file any notices,
or obtain any consents, all as may be necessary or appropriate in connection
therewith.
SECTION 6.14 CHANGES. The Borrower will not make any material changes in
the improvements on the Property which alter the character of its business as
carried on as of the date hereof, without the prior written approval of Bank.
SECTION 6.15 EXTERMINATING CONTRACT. Borrower shall obtain and maintain in
force during the term of this 2002 Agreement a contract with a licensed
exterminating company acceptable to Bank certifying that the Property is under
the contract and that there is no active infestation from termites or other wood
destroying organisms. In the event that any termite certificate shall disclose
active termite or other infestation, such infestation shall not constitute a
default under this covenant provided that any damages as a result thereof is
being repaired diligently.
ARTICLE VII.
NEGATIVE COVENANTS
SECTION 7.1 LIMITATION OF INDEBTEDNESS. Borrower covenants and agrees
that during the term of this Revolving Credit Loan it will not incur, create,
assume or in any manner become or be liable in respect of any indebtedness and
Borrower will not guarantee or otherwise in any way become or be responsible for
the obligations of any other Person, whether by agreement to purchase the
indebtedness of any other Person or agreement for the furnishing of funds to any
other Person through the purchase or lease of goods, supplies or services (or by
way of stock purchase, capital contribution, advance or loan), for the purpose
of paying or discharging the indebtedness of any other Person, or otherwise,
except that the foregoing restrictions shall not apply to:
(a) the Revolving Credit Note or other indebtedness to Bank;
(b) indebtedness consented to by Bank and subordinated to Bank and which
shall not jeopardize payment of this Revolving Credit Loan;
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(c) liabilities, direct or contingent, of Borrower existing on the date of
this 2002 Agreement which are reflected in the financial statements or have been
disclosed to Bank in writing, and any renewals and extensions thereof;
(d) endorsements of negotiable or similar instruments for collection or
deposit in the ordinary course of business;
(e) taxes, assessments or other governmental charges which are not yet due
or are being contested in good faith by appropriate action promptly initiated
and diligently conducted, if such reserve as shall be required by generally
accepted accounting principles shall have been made therefor;
(f) trade account payables and other similar indebtedness incurred in the
ordinary course of business;
(g) intercompany transfers to Guarantor or Affiliate as set forth in
Section 6.12(c);
(h) additional debt described in Section 6.12(d);
SECTION 7.2 LIENS AND ENCUMBRANCES. Borrower will not create, incur,
assume or permit to exist any mortgage or other lien upon any assets now owned
or hereafter acquired by it, except:
(a) liens for taxes, assessments, or other governmental charges not yet
due or which are being contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserve as shall be required by
generally accepted accounting principles shall have been made therefor;
(b) liens of landlords, vendors, carriers, warehousemen, mechanics,
laborers and materialmen arising by law in the ordinary course of business for
sums not yet due or being contested in good faith by appropriate action promptly
initiated and diligently conducted, if such reserve as shall be required by
generally accepted accounting principles shall have been made therefor;
(c) liens existing on property owned by Borrower on the date of this 2002
Agreement which have been disclosed to Bank in writing and any renewals and
extensions thereof;
(d) pledges or deposits made in the ordinary course of business in
connection with workmen's compensation, unemployment insurance, social security
and other like laws;
(e) any liens created pursuant to this 2002 Agreement;
(f) liens immaterial in amount;
(g) liens expressly junior to the liens of Bank provided such junior liens
do not exceed $1,000,000.00 and are for capital improvements.
SECTION 7.3 LOANS AND ADVANCES. Borrower will not make any loans,
advances or investments to or with any third parties; provided, however, that
Borrower may make loans or advances to employees or officers of Borrower, not
exceeding $50,000.00 in the aggregate outstanding, and to Guarantor as provided
in Section 6.12. Borrower also will not pay any salaries to any offsite officers
but Borrower may pay annual management and marketing fees to Guarantor equal to
4 1/2% of revenues in accordance with present practices.
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SECTION 7.4 DIVIDENDS. DISTRIBUTION. REDEMPTIONS. Guarantor shall not
declare or pay any dividend of any kind whatsoever (other than stock dividends),
purchase, redeem or otherwise acquire for value any of its stock now or
hereafter outstanding, return any capital to its stockholders, or make any
distribution of its assets to its stockholders as such, provided, however, that
Guarantor may declare dividends and purchase its own shares as provided in
Section 6.11. Guarantor shall report the number of shares so purchased and the
price it paid for such shares.
SECTION 7.5 NATURE OF BUSINESS. Neither Borrower nor Guarantor will
permit any material change to be made in the character of their business as
carried on as of the date hereof.
SECTION 7.6 MERGERS, ETC. Neither Borrower nor Guarantor will merge or
consolidate with or into any other corporation, nor will either of them sell,
assign, lease, transfer, convey or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of their
capital assets (whether now owned or hereafter acquired) including the Property
to any Person, without Bank's prior written consent, which consent may
arbitrarily be withheld, nor shall Borrower or Guarantor adopt any plan of
liquidation, except where Borrower merges with or conveys its assets to
Guarantor and the surviving company assumes payment of the Revolving Credit
Loan.
SECTION 7.7 OTHER AGREEMENTS. Borrower will not amend, change, alter or
enter into any agreement that has a reasonable likelihood of materially
adversely affecting Borrower's ability to comply with the terms and conditions
of this 2002 Agreement and the repayment of the Revolving Credit Loan.
SECTION 7.8 SALE OF ACCOUNTS RECEIVABLE. The Borrower will not sell or
transfer any of its accounts receivable, whether with or without recourse,
except for third party consumer credit card transactions.
SECTION 7.9 TRANSACTIONS WITH AFFILIATES. Borrower will not enter into
any transactions with any Affiliate, except on terms no less favorable to the
Borrower than would be available in a bona fide arm's length transaction with a
non-affiliated person or entity.
SECTION 7.10 ENVIRONMENTAL COMPLIANCE. (a) Borrower represents and
warrants that (i) Borrower shall not cause nor to the best of its knowledge has
the Property ever been used in a manner to violate any applicable federal, state
and local environmental, health and safety statutes and regulations of every
nature whatsoever, including without limitation, those regarding the presence
and removal of asbestos-containing materials (said statutes and regulations are
hereinafter collectively referred to as "Environmental Laws"), (ii) Borrower
shall not permit the Property to be used, and represents to the best of its
knowledge that the Property has never been used, for the generation,
manufacture, refinement, production, storage, handling, transfer, processing or
transportation of any hazardous or toxic substances or waste, any oil or
pesticide or any asbestos-containing materials (except for customary materials
incident to the normal operation of the Property, i.e. solvents, pesticides,
cleaners, heating oil, etc. which shall be used in accordance with applicable
law) and (iii) to the best of Borrower's knowledge the Property does not contain
any underground storage tanks nor will Borrower install any underground storage
tanks unless they are in full compliance with all environmental laws and
regulations.
(b) Borrower has never generated, stored, disposed of or otherwise handled
any hazardous substance on the Property in any fashion contrary to applicable
law and is, to the best of its knowledge, not aware of the generation, storage,
disposal or other handling of any hazardous substance on the Property by anyone
else in any fashion contrary to applicable law. Borrower also is, to the best of
its knowledge, not aware of the presence
146
of any hazardous substance on the Property which may require remedial action
under applicable law. Borrower, to the best of its knowledge, is not aware of
any transformers or other equipment on the Property which contain PCBs.
(c) Borrower shall give Bank immediate notice of the occurrence of any of
the following events:
(i) Borrower's knowledge of the failure of the Property to comply
with any Environmental Law in any manner whatsoever;
(ii) the receipt by Borrower or any tenant of any notice,
complaint or order of violation or non-compliance of any nature whatsoever with
regard to compliance of the Property with any Environmental Law; or
(iii) any notice of a pending or, to Borrower's best knowledge,
information and belief, threatened investigation regarding the compliance of any
of the operations on the Property with the requirements of any Environmental
Law.
(d) Borrower agrees to defend, indemnify and hold harmless Bank and each
and all of Bank's officers, directors, employees, attorneys and agents
(collectively referred to as "Indemnities") from and against any and all losses
(including, without limitation, diminution in value of the Property),
liabilities (including, without limitation, strict liability), suits,
obligations, fines, damages, judgments, penalties, claims, charges, costs and
expenses (including, without limitation, fees and disbursements of counsel and
consultants for such Indemnities), which may be paid, incurred or suffered by,
or asserted against, an Indemnitee by any person or entity or governmental
agency and arising directly or indirectly out of or in connection with
(i) any matter, condition or act involving Environmental Law
which arise from and after the date hereof, whether or not Borrower has
knowledge of same or
(ii) the breach by Borrower of any representation, warranty or
covenant by Borrower contained in this Section 7.10.
(e) The warranties and indemnities of Borrower, and the rights and
remedies of Bank, under this Section 7.10 are in addition to and not in the
limitation of any other warranties, indemnities, rights and remedies provided in
this 2002 Agreement or otherwise at law or in equity and shall survive any
foreclosure and sale of the Property and any conveyance thereof by deed in lieu
of foreclosure, or the satisfaction or release, or assignment by Bank, of this
2002 Agreement.
ARTICLE VIII.
DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. The occurrence of any one or more of the
following events (regardless of the reason therefor) shall constitute an "Event
of Default" hereunder and failure to cure such Event of Default within five (5)
business days (or such other time periods as indicated hereinbelow) following
written notice of such Event of Default shall, at Bank's option, relieve Bank of
its obligations hereunder and shall immediately mature and make due and exigible
the entire balance of funds under the Revolving Credit Loan up to the date of
said Event of Default;
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(a) The failure of Borrower or Guarantor to pay interest or principal on
any Indebtedness after the same becomes due and payable, including without
limitation on the Revolving Credit Loan under the terms of the Revolving Credit
Note and this 2002 Agreement as and when same is due and payable whether at
maturity or at a date fixed for the payment of any reduction in principal to
comply with the Maximum Revolving Credit Loan Amount thereof or by acceleration
or otherwise and such failure shall have remained unremedied for a period of
five (5) days after Borrower and Guarantor shall have received notice of such
Event of Default from Bank;
(b) The failure of Borrower or Guarantor to observe or perform any of the
obligations to be observed or performed by Borrower or Guarantor under the terms
of this 2002 Agreement, the Revolving Credit Note or any one or more of them,
including, but not limited to, the obligation set forth in Section 2.2 (a). If
the default is a nonmonetary default, Borrower or Guarantor shall have thirty
(30) days to cure the Event of Default;
(c) The failure of Guarantor or Borrower to be in compliance with the
financial covenants set forth in Section 6.11 and Section 6.12;
(d) The failure of Borrower to maintain the insurance required under this
2002 Agreement, or failure to pay any reasonable attorney's fee, recordation
fee, appraisal fee, inspection fee, or other fee to be paid by Borrower
hereunder;
(e) Any representation or warranty by Borrower or Guarantor contained
herein or in the Leasehold Mortgage, or any of the other Security Instruments
shall at any time be or become incorrect, false, or misleading, or shall be
breached, in any material respect and such representation or warranty is not
remedied within 30 days of written notice from Bank;
(f) Borrower or Guarantor shall (1) become insolvent; (2) admit in writing
its inability to pay its debts as they mature; (3) fail generally to pay its
debts as they become due; (4) make a general assignment for the benefit of
creditors; (5) be adjudicated as bankrupt, or insolvent; or (6) file a voluntary
petition in bankruptcy or a petition or an answer seeking an arrangement with
creditors or to take advantage of any insolvency law, or file an answer
admitting the material allegations of a petition filed against it in any
bankruptcy, reorganization, or insolvency proceeding;
(g) If a court having jurisdiction shall enter a decree (i) appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other such
official for Borrower or Guarantor or for any substantial part of its property;
or (ii) ordering the winding up or liquidation of the affair of Borrower or
Guarantor, and such decree or order shall remain unstayed and in effect for a
period of 30 consecutive days;
(h) If any proceedings shall be instituted against Borrower or Guarantor
under any applicable bankruptcy, reorganization, insolvency or other similar law
now or hereafter in effect; and such decree or order shall remain unstayed and
in effect for a period of thirty (30) consecutive days;
(i) A final judgment for the payment of money not covered by insurance in
excess of $50,000 shall be rendered against Borrower or Guarantor, and shall
remain undischarged for a period of thirty (30) consecutive days and not be
effectively stayed;
(j) Borrower or Guarantor or any subsidiary of Guarantor shall fail to
make when due, or within any applicable grace period, any payment of principal
or interest required by any evidence of indebtedness for borrowed money, finance
lease agreement, security agreement, or real estate mortgage held by any person
other
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than Bank, or shall fail to comply with any other material provision of any such
evidence of indebtedness, agreement or mortgage, document or instrument to which
Borrower's or Guarantor's property is bound, which such failure shall be
continuing without waiver or cure and which failure to make payment or to comply
shall have a Material Adverse Effect on Borrower or Guarantor or any subsidiary
of Guarantor;
(k) Borrower knowingly violates any covenant or condition in any other
agreement which creates or may create a Material Adverse Effect;
(l) The revocation, withdrawal, material modification, withholding or
expiration of any license, consent, or approval of any governmental agency or
regulatory body required for the completion of Borrower's obligations under this
2002 Agreement;
(m) The failure of Borrower or Guarantor to pay the Undisbursed Commitment
fee within 5 days of receipt of the Bank's invoice for said Undisbursed
Commitment Fee; or
(n) A default not cured or waived under the Lease shall be deemed to be an
Event of Default.
SECTION 8.2 REMEDIES. Upon the occurrence of an Event of Default
hereunder, Bank, at its option:
(a) shall be relieved of any further obligation to Borrower under this
2002 Agreement, including without limitation its obligation to allow Borrower to
reborrow from Bank pursuant to Article II hereof;
(b) shall have the right to declare the Revolving Credit Note and any
Security Instruments to be immediately due and payable, whereupon the same shall
become immediately due and payable without presentment, demand, protest or
notice of any kind (all of which are hereby expressly waived), and Bank may
thereupon institute proceedings to collect same, including, but without limiting
the generality of the foregoing, the right to institute foreclosure proceedings
on the Collateral Leasehold Mortgage;
(c) shall have the right and is hereby authorized to apply and/or set off
any or all funds or balances on deposit in any accounts maintained by Borrower
or Guarantor with Bank and any other funds now or hereafter belonging to
Borrower or Guarantor and in the care, custody or control of Bank, to the
payment of the Indebtedness;
(d) shall have the right to take possession of any additional collateral
which Bank may hold belonging to Borrower or Guarantor, if any, and convert same
without the consent of Borrower or Guarantor, and use the proceeds of such
collateral to pay any debt or expenses required to be paid by Borrower hereunder
or apply such proceeds to the payment of or reduction of the Revolving Credit
Loan; and
(e) shall have the right to take any action which in Bank's own judgment
may be necessary or advisable in order to fulfill the obligations of Borrower or
Guarantor under this 2002 Agreement. Any and all amounts expended by Bank in so
doing shall constitute an additional indebtedness on the Revolving Credit Loan
made hereunder to Borrower under this 2002 Agreement.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1 NOTICES. All notices required hereunder shall be in writing
and shall be deemed to have been sufficiently given or served for all purposes
when received after being deposited in the United States mail
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by certified mail, return receipt requested, addressed to any party hereto at
its address below stated, or at such other address of which it shall have
notified the party giving such notice in writing. The respective addresses of
the parties are as follows:
To Borrower Royal Sonesta, Inc.
Royal Sonesta Hotel
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: General Manager
and
Sonesta International Hotels Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Office of the Treasurer
and
Xxxxxx X. Xxxxxx, Esq.
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
SECTION 9.2 ENTIRE AGREEMENT - AMENDMENT. This 2002 Agreement sets forth
the entire agreement of the parties with respect to the subject matter hereof
and restates all prior written or oral agreements or understandings with respect
thereto. Neither this 2002 Agreement nor any provision hereof may be changed,
waived, discharged or terminated orally, but same may only be accomplished by an
instrument in writing signed by the parties against whom enforcement of the
change, waiver, discharge or termination is sought.
SECTION 9.3 CUMULATIVE EFFECT. Each and every right, remedy and power
granted Bank hereunder shall be cumulative and in addition to any other right,
remedy or power held by Bank or now or hereafter existing in equity, at law, by
statute or otherwise, and may be exercised by Bank, from time to time,
concurrently or independently and as often and in such order as Bank may deem
expedient.
SECTION 9.4 THIRD PARTY BENEFICIARIES. Nothing in this 2002 Agreement
shall be deemed to create any rights in favor of any person, firm or corporation
not a party hereto, and this 2002 Agreement shall not be construed in any
respect to be a contract in whole or in part for the benefit of any third party,
except in the case of the permitted successors and/or assigns of the parties
hereto.
SECTION 9.5 SUCCESSORS AND ASSIGNS. The provisions of this 2002 Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that, subject only to the provisions
of any applicable bankruptcy law, neither Borrower or Guarantor may assign or
transfer any of its rights or obligations under this 2002 Agreement;
SECTION 9.6 SECTION HEADINGS. Section headings are inserted for
convenience only and shall not affect any construction or interpretation of this
2002 Agreement.
SECTION 9.7 GOVERNING LAW. THIS 2002 AGREEMENT, THE REVOLVING CREDIT
NOTE, THE SECURITY INSTRUMENTS AND ALL OTHER DOCUMENTS REQUIRED HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
LOUISIANA.
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SECTION 9.8 WAIVER. In the event that Borrower shall at any time during
the term of this 2002 Agreement not perform any of its obligations hereunder or
fail to satisfy any of the conditions set forth herein, the fact that Bank shall
not avail itself at that time of any remedy to which it may be entitled
hereunder shall not constitute a waiver of any of the subsequent obligations of
Borrower hereunder, and shall not prohibit Bank from demanding payment of the
Revolving Credit Note at any time.
SECTION 9.9 INVALIDITY. In the event that any one or more of the
provisions contained in this 2002 Agreement, the Revolving Credit Note, the
Security Instruments or any of the other collateral documents executed in
connection herewith shall, for any reason, be held invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this 2002 Agreement, the Revolving
Credit Note, the Security Instruments or any of the other collateral documents.
SECTION 9.10 SURVIVAL OF AGREEMENTS. All representations, warranties,
covenants and agreements of Borrower and Guarantor herein not fully performed
before the date of this 2002 Agreement shall survive such date. In addition,
this 2002 Agreement shall continue in existence until the Indebtedness has been
paid or discharged in full.
SECTION 9.11 SEVERABILITY. If any provision or provisions of this 2002
Agreement are found to be void or unenforceable, the remaining provisions of
this 2002 Agreement and any agreements or instruments delivered pursuant hereto
shall, nevertheless, be binding, and this 2002 Agreement and such agreements and
instruments as shall be enforceable as if the void or unenforceable provision or
provisions had not been included.
SECTION 9.12 ORIGINALS. This 2002 Agreement may be executed in multiple
originals, each of which shall be deemed an original. In making proof of this
2002 Agreement for any reason, it shall not be necessary to produce more than
one original.
SECTION 9.13 NO REPRESENTATIONS BY THE BANK. The Bank has no obligation in
connection with the Property, except to advance proceeds as herein provided, and
the Bank shall not be liable for the performance or non-performance or delay in
performance of any contractor, subcontractor or supplier of materials, or for
the quality of workmanship or materials, or for the failure to construct,
complete, protect or insure the Property, or for the payment of any costs or
expenses incurred in connection therewith, or for the performance or
non-performance or delay in performance of any obligation of Borrower to the
Bank. Any inspection by the Bank of the Property, approval of any activities
shall only be for the sole and separate benefit of the Bank for the purpose of
protecting the security of the Bank, and the same shall in no way be construed
as a representation that there is compliance on the part of the Borrower with it
obligators or that any construction on the Property is free from faulty material
or workmanship. The fact that the Bank makes such inspection shall not relieve
Borrower from its duty to independently ascertain that any construction is being
completed in accordance with the plans and specifications, and Borrower has no
right to rely on any procedures required by the Bank.
SECTION 9.14 ESTOPPEL LETTER. Upon reasonable request of Borrower or
Guarantor from time to time, Bank will provide a statement to Borrower or
Guarantor of the amounts due under the Revolving Credit Loan and stating whether
Bank is claiming that any default thereunder or Event of Default hereunder
exists at that time. Nothing in this section shall relieve Borrower or Guarantor
of their obligations under this 2002 Agreement.
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SECTION 9.15 WAIVER OF JURY TRIAL: SUBMISSION TO JURISDICTION.
(a) The Borrower and the Bank hereby waive trial by jury in any action or
proceeding to which the Borrower and the Bank may be parties, arising out of or
in any way pertaining to (i) the Note, (ii) this 2002 Agreement and (iii) any
and all previous loan agreements and Security Instruments. It is agreed and
understood that this waiver constitutes a waiver of trial by jury of all claims
against all parties to such actions or proceedings, including claims against
parties who are not parties to this 2002 Agreement. This waiver is knowingly,
willingly and voluntarily made by the Borrower and the Bank, and the Borrower
and the Bank hereby represent that no representations of fact or opinion have
been made by any individual to induce this waiver of trial by jury or to in any
way modify or nullify its effect. The Borrower and the Guarantor further
represents that it has been represented in the signing of this 2002 Agreement
and in the making of this waiver by counsel, selected of its own free will, and
that it has had the opportunity to discuss this waiver with counsel.
(b) The Borrower hereby irrevocably consents to the jurisdiction of the
State Courts of Louisiana and the Federal Courts in Louisiana, and agrees that
any action or proceeding arising out of or brought to enforce the provisions of
the note and/or any loan documents may be brought in any court having subject
matter jurisdiction.
THUS DONE AND PASSED on the 28th of March, 2002, in the presence of the
undersigned witnesses who hereunto sign their names with the Mortgagor and me,
Notary, after due reading of the whole.
WITNESSES: BORROWER
ROYAL SONESTA, INC
/S/ BY: /S/
------------------------------ ------------------------------
Xxxxxx X. Xxxx Name: Boy xxx Xxxx
---------------------------
Title: Vice President & Treasurer
---------------------------
/S/
------------------------------
Xxxxx X. Xxxxxxxx GUARANTOR
SONESTA INTERNATIONAL HOTELS
CORPORATION
BY: /S/
-------------------------------
Name: Boy xxx Xxxx
---------------------------
Title: Vice President & Treasurer
---------------------------
BANK
HIBERNIA NATIONAL BANK
BY: /S/
------------------------------
Name: Xxxxxx X. Xxxxx, XX
---------------------------
Title: Vice President
---------------------------
/S/
------------------------------------
Xxxxxxxx X. Xxxxxx
NOTARY PUBLIC
MY COMMISSION IS ISSUED FOR LIFE
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