BUSINESS LOAN AGREEMENT Exhibit 10.86
References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. An item above
containing "***" has been omitted due to text length limitations.
Borrower: S & w New Orleans, X.XX. Lender: Hibernia National Bank
(TIN: 00-0000000) Attn: Loan Administration Dept.
0000 Xxxxx Xxx. 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
THIS BUSINESS LOAN AGREEMENT dated May 26, 2004, is made and executed between S
l W New Orleans, L.L.C. ("Borrower"), and Borrower's Members signing below
("Members"), and Hibernia National Bank ("Lender") on the following terms and
conditions. Borrower has applied to Lender for a loan or loans or other
financial accommodations, Including those which may be described on any exhibit
or schedule attached to this Agreement ("Loan"). Borrower understands and agrees
that: (A) in granting, renewing, or extending any Loan, Lender is relying upon
Borrower's representations, warranties, and agreements as set forth in this
Agreement; (8) the granting, renewing, or extending of any Loan by Lender at all
times shall be subject to Lender's sole judgment and discretion; and (C) all
such Loans shall be and remain subject to the terms and conditions of this
Agreement.
EFFECT OF AGREEMENT. The following provisions pertain to the effect of this
Agreement.
Applicability. This Agreement shall apply to any and all present and future
Indebtedness, contracts, agreements and undertakings by and between Borrower and
Lender for any purpose whatsoever.
Amendment to Operating Agreement. This Agreement shall for all purposes be
considered and shall have the same effect as an amendment to, and shall comprise
a part of Borrower's Operating Agreement, and shall be binding upon Borrower and
all of Borrower's present and future Members. To this end, all persons
subsequently acquiring Membership Interests in Borrower for all purposes shall
be deemed to be bound and obligated under the terms and conditions of this
Agreement just as if said subsequently added Members had signed this Agreement
along with the Members signing below, with the consent and agreement of such
subsequently added Members to be so bound and obligated hereunder being an
absolute condition precedent to such persons acquiring Membership Interests in
Borrower.
APPLICATION FOR AND PURPOSE OF THE LOAN. Borrower has applied to Lender for a
Loan in the aggregate principal amount of $2,000,000 for the following purpose:
Property updates and term financing..
BORROWER'S NOTE. Lender has agreed to extend a Loan to Borrower in the amount of
$2,000,000 subject to the terms and conditions of this Agreement and Borrower's
attached Note. Borrower agrees to be bound and obligated under the terms and
conditions of this Agreement and Borrower's Note.
TERM. This Agreement shall be effective as of May 26, 2004, and shall continue
in full force and effect until such time as all of Borrower's Loans in favor of
Lender have been paid in full, including principal, interest, costs, expenses,
attorneys' fees, and other fees and charges, or until such time as the parties
may agree in writing to terminate this Agreement.
AUTHORIZED REPRESENTATIVES. The following provisions pertain to, among other
things, the authorization of persons under this Agreement.
Resolutions. The Members of Borrower have met and have properly authorized
certain designated persons ("Authorized Representatives") to represent Borrower
and to act for and on behalf of Borrower in dealing with Lender. To the extent
applicable, such Authorized Representatives are listed in a separate form of
Resolution or other communication delivered to Lender.
Managers. Borrower's present and future Managers (to the extent that Borrower
has Managers) shall always have the full and unrestricted authority to deal with
Lender and shall be considered Authorized Representatives of Borrower without
the additional necessity of being specifically designated as such by Borrower's
Members under a formal resolution.
Unrestricted Authority. Notwithstanding any provision of Borrower's Operating
Agreement to the contrary, or any resolution of Borrowers Members not previously
communicated to Lender in writing, Borrower's Authorized Representatives
(including without limitation Borrower's Managers) shall have the full and
unrestricted right, power and authority to deal and to contract with Lender and
to otherwise bind and unrestricted right, power and authority, from time to
time, one or more times, and without the necessity of obtaining the further
approval of all or a majority of Borrower's Members: (1) to obtain loans, loan
advances, and to incur other Indebtedness and obligations in favor of Lender in
any amount and for any purpose, and whether or not deemed to be in the ordinary
course of Borrower's business; and (2) to sell, exchange, lease, mortgage,
pledge, or otherwise transfer or encumber or grant Security Interests in favor
of Lender as affecting any or all or substantially all of the assets and movable
(personal) and immovable (real) properties of Borrower, including without
limitation, entering into mortgages and security agreements that contain
confessions of judgment and consents to foreclosure remedies under Louisiana
executory process procedures; and (3) otherwise to enter into such agreements
and to incur such obligations in favor of Lender as such Authorized
Representatives may deem to be necessary and proper.
Substitute Authorized Representatives. Lender may continue to deal and contract
with such Authorized Representatives on an unrestricted basis until such time
as: (1) their authority to act for and on behalf of Borrower is formally revoked
and substitute Authorized Representatives are properly appointed by Borrower's
Members, and (2) Lender is properly notified in writing and accepts and
acknowledges the same.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Advance and each subsequent Advance under this Agreement shall be subject to the
fulfillment to Lender's satisfaction of all of the conditions set forth in this
Agreement and in the Related Documents.
Loan Documents. Borrower shall provide to Lender the following documents for the
Loan: (1) the Note; (2) Security Agreements granting to Lender security
interests in the Collateral, (3) financing statements and all other documents
perfecting Lender's Security Interests; (4) evidence of insurance as required
below; (5) guaranties, (6) together with all such Related Documents as Lender
may require for the Loan; all in form and substance satisfactory to Lender and
Lender's counsel.
Borrower's Authorization. Borrower shall have provided in form and substance
satisfactory to Lender properly certified resolutions, duly authorizing the
execution and delivery of this Agreement, the Note and the Related Documents. In
addition, Borrower shall have provided such other resolutions, authorizations,
documents and instruments as Lender or its counsel, may require.
Payment of Fees and Expenses. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in this
Agreement or any Related Document.
Representations and Warranties. The representations and warranties set forth in
this Agreement, in the Related Documents, and in any document or certificate
delivered to Lender under this Agreement are true and correct.
No Event of Default. There shall not exist at the time of any Advance a
condition which would constitute an Event of Default under this Agreement or
under any Related Document.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
Organization. Borrower is a limited liability company which is, and at all times
shall be, duly organized, validly existing, and in good standing under and by
virtue of the laws of the State of Delaware. Borrower is duly authorized to
transact business in the State of Louisiana and all other states in which
Borrower is doing business, having obtained all necessary filings, governmental
licenses and approvals for each state in which Borrower is doing business.
Specifically, Borrower is, and at all times shall be, duly qualified as a
foreign limited liability company in all states in which the failure to so
qualify would have a material adverse effect on its business or financial
condition. Borrower has the full power and authority to own its properties and
to transact the business in which it is presently engaged or presently proposes
to engage. Borrower maintains an office at 0000 Xxxxx Xxx., Xxx Xxxx, XX 00000.
Unless Borrower has designated otherwise in writing, the principal office is the
office at which Borrower keeps its books and records including its records
concerning the Collateral. Borrower will notify Lender prior to any change in
the location of Borrower's state of organization or any change in Borrower's
name. Borrower shall do all things necessary to preserve and to keep in full
force and effect its existence, rights and privileges, and shall comply with all
regulations, rules, ordinances, statutes, orders and decrees of any governmental
or quasi-governmental authority or court applicable to Borrower and Borrower's
business activities.
BUSINESS LOAN AGREEMENT (Continued)
Page 2
Assumed Business Names. Borrower has filed or recorded all documents or filings
required by law relating to all assumed business names used by Borrower.
Excluding the name of Borrower, the following is a complete list of all assumed
business names under which Borrower does business: None.
Authorization. Borrower's execution, delivery, and performance of this Agreement
and all the Related Documents have been duly authorized by all necessary action
by Borrower and do not conflict with, result in a violation of, or constitute a
default under (1) any provision of (a) Borrower's articles of organization or
membership agreements, or (b) any agreement or other instrument binding upon
Borrower or (2) any law, governmental regulation, court decree, or order
applicable to Borrower or to Borrower's properties.
Financial Information. Each of Borrower's financial statements supplied to
Lender truly and completely disclosed Borrower's financial condition as of the
date of the statement, and there has been no material adverse change in
Borrower's financial condition subsequent to the date of the most recent
financial statement supplied to Lender. Borrower has no material contingent
obligations except as disclosed in such financial statements.
Legal Effect. This Agreement constitutes, and any instrument or agreement
Borrower is required to give under this Agreement when delivered will constitute
legal, valid, and binding obligations of Borrower enforceable against Borrower
in accordance with their respective terms.
Properties. Except as contemplated by this Agreement or as previously disclosed
in Borrower's financial statements or in writing to Lender and as accepted by
Lender, and except for property tax liens for taxes not presently due and
payable, Borrower owns and has good title to all of Borrower's properties free
and clear of all Security Interests, and has not executed any security documents
or financing statements relating to such properties. All of Borrower's
properties are titled in Borrower's legal name, and Borrower has not used or
filed a financing statement under any other name for at least the last five (5)
years.
Hazardous Substances. Except as disclosed to and acknowledged by Lender in
writing, Borrower represents and warrants that; (1) During the period of
Borrower's ownership of Borrower's Collateral, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any Hazardous Substance by any person on, under, about or from any of
the Collateral. (2) Borrower has no knowledge of, or reason to believe that
there has been (a) any breach or violation of any Environmental Laws; (b) any
use, generation, manufacture, storage, treatment, disposal, release or
threatened release of any Hazardous Substance on, under, about or from the
Collateral by any prior owners or occupants of any of the Collateral; or (c) any
actual or threatened litigation or claims of any kind by any person relating to
such matters. (3) Neither Borrower nor any tenant, contractor, agent or other
authorized user of any of the Collateral shall use, generate, manufacture,
store, treat, dispose of or release any Hazardous Substance on, under, about or
from any of the Collateral; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation all Environmental Laws. Borrower
authorizes Lender and its agents to enter upon the Collateral to make such
inspections and tests as Lender may deem appropriate to determine compliance of
the Collateral with this section of the Agreement. Any inspections or tests made
by Lender shall be at Borrower's expense and for Lender's purposes only and
shall not be construed to create any responsibility or liability on the part of
Lender to Borrower or to any other person. The representations and warranties
contained herein are based on Borrower's due diligence in investigating the
Collateral for hazardous waste and Hazardous Substances. Borrower hereby (1)
releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (2) agrees to indemnify and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or suffer resulting
from a breach of this section of the Agreement or as a consequence of any use,
generation, manufacture, storage, disposal, release or threatened release of a
hazardous waste or substance on the Collateral. The provisions of this section
of the Agreement, including the obligation to indemnify, shall survive the
payment of the Indebtedness and the termination, expiration or satisfaction of
this Agreement and shall not be affected by Lender's acquisition of any interest
in any of the Collateral, whether by foreclosure or otherwise.
Litigation. There are no suits or proceedings pending, or to the knowledge of
Borrower, threatened against or affecting Borrower or Borrower's assets, before
any court or by any governmental agency, other than those previously disclosed
to Lender in writing, which, if adversely determined, may have a material
adverse effect on Borrower's financial condition or business.
Taxes. To the best of Borrower's knowledge, all of Borrower's tax returns and
reports that are or were required to be filed, have been filed, and all taxes,
assessments and other governmental charges have been paid in full, except those
presently being or to be contested by Borrower in good faith in the ordinary
course of business and for which adequate reserves have been provided.
Information. All information heretofore or contemporaneously herewith furnished
by Borrower to Lender for the purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all information hereafter
furnished by or on behalf of Borrower to Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified; and none of such information is or will be incomplete by omitting to
state any material fact necessary to make such information not misleading.
Lien Priority. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or permitted
the filing or attachment of any Security Interests on or affecting any of the
Collateral directly or indirectly securing repayment of Borrower's Loan and
Note, that would be prior or that may in any way be superior to Lender's
Security Interests and rights in and to such Collateral.
Binding Effect. This Agreement, the Note, all Security Agreements (if any), and
all Related Documents are binding upon the signers thereof, as well as upon
their successors, representatives and assigns, and are legally enforceable in
accordance with their respective terms.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, so long
as this Agreement remains in effect, Borrower will:
Good Standing. Maintain its good standing status as a Louisiana limited
liability company and remain qualified in each additional jurisdiction where the
conduct of Borrower's business requires such qualification.
Other Events. Promptly notify Lender in writing of (1) the addition of any new
Members of Borrower, (2) the death, interdiction, withdrawal, expulsion,
bankruptcy, or dissolution of any Member or the occurrence of any other event
which may terminate the continued membership of any member, (3) the expression
of any intent or desire on the part of any Member or Members to dissolve or
liquidate Borrower, and (4) the occurrence or any event specified in Borrower's
Articles or in Borrower's Operating Agreement that may result in Borrower's
dissolution or liquidation.
Notices of Claims and Litigation. Promptly inform Lender in writing at (1) all
material adverse changes in Borrower's financial condition, and (2) all existing
and all threatened litigation, claims, investigations, administrative
proceedings or similar actions affecting Borrower or any Guarantor which could
materially affect the financial condition of Borrower or the financial condition
of any Guarantor.
Financial Records. Maintain its books and records in accordance with GAAP,
applied on a consistent basis, and permit Lender to examine and audit Borrower's
books and records at all reasonable times.
Financial Statements. Furnish Lender with the following:
Annual Statements. As soon as available after the end of each fiscal year,
Borrower's balance sheet and income statement for the year ended, prepared by
Borrower in form satisfactory to Lender.
Tax Returns. As soon as available after the applicable filing date for the tax
reporting period ended, Federal and other governmental tax returns, prepared by
a tax professional satisfactory to Lender.
All financial reports required to be provided under this Agreement shall be
prepared in accordance with GAAP, applied on a consistent basis, and certified
by Borrower as being true and correct.
Additional Information. Furnish such additional information and statements, as
Lender may request from time to time.
Insurance Maintain fire and other risk insurance, public liability insurance,
and such other insurance as Lender may require with respect to Borrower's
properties and operations, in form, amounts, coverages and with insurance
companies acceptable to Lender. Borrower, upon request of Lender, will deliver
to Lender from time to time the policies or certificates of insurance in form
satisfactory to Lender, including stipulations that coverages will not be
cancelled or diminished without at least thirty (30) days prior written notice
to Lender. Each insurance policy also shall include an endorsement providing
that coverage in favor of Lender will not be impaired in any way by any act,
omission or default of Borrower or any other person. In connection with all
policies covering assets in which Lender holds or is offered a security interest
for the Loans, Borrower will provide Lender with such lender s loss payable or
other endorsements as Lender may require.
Insurance Reports. Furnish to Lender, upon request of Lender, reports on each
existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the properties
insured; (5) the then current property values on the basis of which insurance
has been obtained, and the manner of determining those values; and (6) the
expiration date of the policy. In addition, upon request of Lender (however not
more often than annually), Borrower will have an independent appraiser
satisfactory to Lender determine, as applicable, the actual cash value or
replacement cost of any Collateral. The cost of such appraisal shall be paid by
Borrower.
Guaranties. Prior to disbursement of any Loan proceeds, furnish executed
guaranties of the Loans in favor of Lender, executed by the guarantor
BUSINESS LOAN AGREEMENT (Continued)
Page 3
named below, on Lender's forms, and in the amount and under the conditions set
forth in those guaranties.
Name of Guarantor Amount
----------------- ------
The Xxxxx & Wollensky Restaurant Group, Inc. Unlimited
Other Agreements. Comply with all terms and conditions of all other agreements,
whether now or hereafter existing, between Borrower and any other party and
notify Lender immediately in writing of any default in connection with any other
such agreements.
Loan Proceeds. Use all Loan proceeds solely for Borrower's business operations,
unless specifically consented to the contrary by Lender in writing.
Taxes, Charges and Liens. Pay and discharge when due all of its indebtedness and
obligations, including without limitation all assessments, taxes, governmental
charges, levies and liens, of every kind and nature, imposed upon Borrower or
its properties, income, or profits, prior to the date on which penalties would
attach, and all lawful claims that, if unpaid, might become a lien or charge
upon any of Borrower's properties, income, or pro5ts.
Performance. Perform and comply, in a timely manner, with all terms, conditions,
and provisions set forth in this Agreement, in the Related Documents, and in all
other instruments and agreements between Borrower and Lender. Borrower shall
notify Lender immediately in writing of any default in connection with any
agreement.
Operations. Maintain executive and management personnel with substantially the
same qualifications and experience as the present executive and management
personnel; provide written notice to Lender of any change in executive and
management personnel; conduct its business affairs in a reasonable and prudent
manner.
Environmental Studies. Promptly conduct and complete, at Borrower's expense, all
such investigations, studies, samplings and testings as may be requested by
Lender or any governmental authority relative to any substance, or any waste or
by-product of any substance defined as toxic or a hazardous substance under
applicable federal, state, or local law, rule, regulation, order or directive,
at or affecting any property or any facility owned, leased or used by Borrower.
Compliance with Governmental Requirements. Comply with all laws, ordinances, and
regulations, now or hereafter in effect, of all governmental authorities
applicable to the conduct of Borrower's properties, businesses and operations,
and to the use or occupancy of the Collateral, including without limitation, the
Americans With Disabilities Act. Borrower may contest in good faith any such
law, ordinance, or regulation and withhold compliance during any proceeding,
including appropriate appeals, so long as Borrower has notified Lender in
writing prior to doing so and so long as, in Lender's sole opinion, Lender's
interests in the Collateral are not jeopardized. Lender may require Borrower to
post adequate security or a surety bond, reasonably satisfactory to Lender, to
protect Lender's interest.
Inspection. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records and
to make copies and memoranda of Borrower's books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
request of Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of any records
it may request, all at Borrower's expense.
Compliance Certificates. Unless waived in writing by Lender, provide Lender at
least annually, with a certificate executed by Borrower's chief financial
officer, or other officer or person acceptable to Lender, certifying that the
representations and warranties set forth in this Agreement are true and correct
as of the date of the certificate and further certifying that, as of the date of
the certificate, no Event of Default exists under this Agreement.
Environmental Compliance and Reports. Borrower shall comply in all respects with
any and all Environmental Laws; not cause or permit to exist, as a result of an
intentional or unintentional action or omission on Borrower's part or on the
part of any third party, on property owned and/or occupied by Borrower, any
environmental activity where damage may result to the environment, unless such
environmental activity is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within thirty
(30) days after receipt thereof a copy of any notice, summons, lien, citation,
directive, letter or other communication from any governmental agency or
instrumentality concerning any intentional or unintentional action or omission
on Borrower's part in connection with any environmental activity whether or not
there is damage to the environment and/or other natural resources.
Additional Assurances. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, assignments, financing
statements, instruments, documents and other agreements as Lender or its
attorneys may reasonably request to evidence and secure the Loans and to perfect
all Security Interests.
LENDER'S EXPENDITURES. Borrower recognizes and agrees that Lender may incur
certain expenses in connection with Lender's exercise of rights under this
Agreement. If any action or proceeding is commenced that would materially affect
Lender's interest in the Collateral or if Borrower fails to comply with any
provision of this Agreement or any Related Documents, including but not limited
to Borrower's failure to discharge or pay when due any amounts Borrower is
required to discharge or pay under this Agreement or any Related Documents,
Lender on Borrower's behalf may (but shall not be obligated to) take any action
that Lender deems appropriate, including but not limited to discharging or
paying all taxes, Encumbrances and other claims, at any time levied or placed on
any Collateral and paying all costs for insuring, maintaining and preserving any
Collateral, including without limitation, the purchase of insurance protecting
only Lender's interest in any Collateral. Lender may further take such other
action or actions and incur such additional expenditures as Lender may deem to
be necessary and proper to cure or rectify any actions or inactions on
Borrower's part as may be required under this Agreement. Nothing under this
Agreement or otherwise shall obligate Lender to take any such actions or to
incur any such additional expenditures on Borrower's behalf, or as making Lender
in any way responsible or liable for any loss, damage, or injury to any
Collateral, to Borrower, or to any other person or persons, resulting from
Lender's election not to take such actions or to incur such additional expenses.
In addition, Lender's election to take any such actions or to incur such
additional expenditures shall not constitute a waiver or forbearance by Lender
of any Event of Default under this Agreement. All such expenditures incurred or
paid by Lender for such purposes will then bear interest at the rate charged
under the Note from the date incurred or paid by Lender to the date of repayment
by Borrower. All such expenses will become a part of the Indebtedness and, at
Lender's option, will (A) be payable on demand; (B) be added to the balance of
the Note and be apportioned among and be payable with any installment payments
to become due during either (1) the term of any applicable insurance policy; or
(2) the remaining term of the Note; or (C) be treated as a balloon payment which
will be due and payable at the Note's maturity.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
Amendments to Articles or Operating Agreement. Amend its Articles or Operating
Agreement (1) to limit or restrict the permissible activities in which Borrower
may engage, or (2) to withdraw the authority of or to limit or restrict the
authority of Borrower's Authorized Representatives (including Borrower's
Managers) to deal and contract with Lender and to bind and obligate Borrower.
Withdrawal of Members. Permit any Member to withdraw from the Borrower and to
receive any type of withdraw distribution. Distributions. Pay any interim
distribution in cash or other assets to a Member or Members of Borrower.
Waiver or Compromise of Rights Against Members. Waive, compromise or forgo any
rights that Borrower may have against any Member for unpaid capital
contributions or any other obligation owed to Borrower.
Non-Compliance None of the above actions on the part of Borrower (including
without limitation, any amendment to Borrower's Articles or Operating Agreement)
shall be effective as against Lender unless and until: (1) Borrower shall have
notified Lender in writing, and (2) Lender shall have expressly agreed to such
actions in writing. Specifically, any distribution by Borrower in violation of
this Agreement shall be considered as a 'wrongful distribution" for purpose of
applicable Law.
Indebtedness and Liens. (1) Except for trade debt incurred in the normal course
of business and indebtedness to Lender contemplated by this Agreement, create,
incur or assume indebtedness for borrowed money, including capital leases, (2)
sell, transfer, mortgage, assign, pledge, lease, grant a security interest in,
or encumber any of Borrower's assets (except as allowed as Permitted Liens), or
(3) sell with recourse any of Borrower's accounts, except to Lender.
Continuity of Operations. (1) Engage in any business activities substantially
different than those in which Borrower is presently engaged, (2) cease
operations, liquidate, merge, transfer, acquire or consolidate with any other
entity, change its name, dissolve or transfer or sell Collateral out of the
ordinary course of business, or (3) make any distribution with respect to any
capital account, whether by reduction of capital or otherwise.
Loans, Acquisitions and Guaranties. (1) Loan, invest in or advance money or
assets to any other person, enterprise or entity, (2) purchase, create or
acquire any interest in any other enterprise or entity, or (3) incur any
obligation as surety or guarantor other than in the ordinary course of business.
Agreements. Borrower will not enter into any agreement containing any provisions
which would be violated or breached by the performance of Borrower's obligations
under this Agreement or in connection herewith.
BUSINESS LOAN AGREEMENT (Continued)
Page 4
OBLIGATION OF MEMBERS. So long as this Agreement remains in effect, each and
every present and future Member of Borrower agrees and covenants as follows:
No Withdrawal. Not to withdraw as a Member of Borrower and to obtain a
withdrawal distribution without first notifying Lender in writing and obtaining
Lender's prior written consent (which Lender shall have the unrestricted right
to refuse).
Compliance. To take whatever steps may be necessary and proper to insure that
Borrower and each other Member complies with the terms, conditions and covenants
of this Agreement.
SECURITY INTEAEST GRANTED BY MEMBERS. Borrower and each Member additionally
agree as follows:
Membership Interests. Notwithstanding any provision of Borrower's Articles or
Operating Agreement to the contrary, each Member shall have the unrestricted
right, power and authority to grant a Security Interest in favor of Lender as
affecting his Membership Interest in Borrower.
Rights of Lender. Should Lender for any reason acquire the Membership Interest
of any Member, whether as a result of default under a loan or extension of
credit or otherwise, then Lender or any third party to whom Lender may sell or
assign said Membership Interest shall have all of the rights, powers and
authority of a "member" of Borrower, including the right to participate in the
management and affairs permit that result to occur.
Redemptive Rights. Should Lender acquire the Membership Interest of any Member
as a result of a default under a loan, then Lender shall have the right, without
the necessity of first obtaining any type of judgment against such a Member, to
redeem the defaulting Member's Membership Interest for the then value thereof,
which sum shall be paid by Borrower immediately on demand by Lender to be
applied against the Member's loan obligation.
DEPOSIT ACCOUNTS. As collateral security for repayment of Borrower's Note and
all renewals and extensions, as well as to secure any and all other loans,
notes, indebtedness and obligations that Borrower may now and in the future owe
to Lender or incur in Lender's favor, whether direct or indirect, absolute or
contingent, due or to become due, of any nature and kind whatsoever (with the
exception of any indebtedness under a consumer credit card account), and to the
extent permitted by law, Borrower is granting Lender a continuing security
interest in any and all funds that Borrower may now and in the future have on
deposit with Lender or in certificates of deposit or other deposit accounts as
to which Borrower is an account holder (with the exception of XXX, pension, and
other tax-deferred deposits). Borrower further agrees that, to the extent
permitted by law, Lender may at any time apply any funds that Borrower may have
on deposit with Lender or in certificates of deposit or other deposit accounts
as to which Borrower is an account holder against the unpaid balance of
Borrower's Note and any and all other present and future indebtedness and
obligations that Borrower may then owe to Lender, in principal, interest, fees,
costs, expenses, and reasonable attorneys' fees.
EVENTS OF DEFAULT. The following actions or inactions or both shall constitute
Events of Default under this Agreement; Default Under the Note. Should Borrower
default in the payment of principal or interest under the Note or any of the
Indebtedness.
Default Under this Agreement. Should Borrower violate, or fail to comply fully
with any of the terms and conditions of, or default under this Agreement.
Default Under other Agreements. Should any default occur or exist under any
Related Document which directly or indirectly secures repayment of the Loan and
any of the Indebtedness.
Other Defaults In Favor of Lender. Borrower or any guarantor defaults under any
other loan, extension of credit, security right, instrument, document, or
agreement, or obligation in favor of Lender.
Default in Favor of Third Parties. Should Borrower or any Guarantor default
under any loan, extension of credit, security agreement, purchase or sales
agreement, or any other agreement, in favor of any other creditor or person that
may materially affect any of Borrower's property, or any Guarantor's ability to
perform their respective obligations under this Agreement, or any Related
Document, or pertaining to the Indebtedness.
Insolvency. Should the suspension, failure or insolvency, however evidenced, of
Borrower or any Guarantor occur or exist.
Readjustment of Indebtedness. Should proceedings for readjustment of
indebtedness, reorganization, composition or extension under any insolvency law
be brought by or against Borrower or any Guarantor.
Assignment for Benefit of Creditors. Should Borrower or any Guarantor file
proceedings for a respite or make a general assignment for the benefit of
creditors.
Receivership. Should a receiver of all or any part of Borrower's property, or
the property of any Guarantor, be applied for or appointed.
Dissolution Proceedings. Proceedings for the dissolution or appointment of a
liquidator of Borrower or any guarantor are commenced.
False Statements. Any warranty, representation or statement made or furnished to
Lender by Borrower or on Borrower's behalf, the Note, is false or misleading in
any material respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.
Insecurity. Lender in good faith believes itself insecure with regard to
repayment of the Loan.
Effect of an Event of Default. If any Event of Default shall occur, except where
otherwise provided in this Agreement or the Related Documents, all commitments
and obligations of Lender under this Agreement or the Related Documents or any
other agreement immediately will terminate (including any obligation to make
further Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise.
Lender shall have the right at its sole option, to accelerate payment of
Borrower's Note in full, in principal, interest, costs, expenses, attorneys'
fees, and other fees and charges, as well as to accelerate the maturity of any
and all other loans and/or obligations that Borrower may then owe to Lender,
whether direct or indirect, or by way of assignment or purchase of a
participation interest, and whether absolute or contingent, liquidated or
unliquidated, voluntary or involuntary, determined or undetermined, due or to
become due, and whether now existing or hereafter arising, and whether Borrower
is obligated alone or with others on a "solidary" or "joint and several" basis,
as a principal obligor or as a surety, of every nature and kind whatsoever,
whether any such indebtedness may be barred under any statute of limitations or
otherwise may be unenforceable or voidable for any reason whatsoever.
Lender shall have the additional right, again at its sole option, to file an
appropriate collection action against Borrower and/or against any guarantor or
guarantors of Borrower's Loan and Note, and/or to proceed or exercise any rights
against any Collateral then securing repayment of Borrower's Loan and Note.
Borrower and each guarantor further agree that Lender's remedies shall be
cumulative in nature and nothing under this Agreement or otherwise, shall be
construed as to limit or restrict the options and remedies available to Lender
following any event of default under this Agreement or otherwise.
Except as may be prohibited by applicable law, all of Lender's rights and
remedies shall be cumulative and may be exercised singularly or concurrently.
Election by Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of Borrower or of any Grantor shall not affect Lenders right to
declare a default and to exercise its rights and remedies.
DEFINITION OF INDEBTEDNESS EXPANDED. The word "Indebtedness" shall also mean and
include individually, collectively, interchangeably and without limitation, any
and all present and future loans, extensions of credit, liabilities and/or
obligations of every nature and kind whatsoever that Borrower, and/or Grantor if
Borrower and Grantor are not the same party, may now and in the future owe to or
incur in favor of Lender and its successors or assigns, including without
limitation, indebtedness under any Note described herein, whether such loans,
extensions of credit liabilities and/or obligation are direct or indirect, or by
way of assignment, and whether related or unrelated, or whether committed or
purely discretionary, and whether absolute or contingent, voluntary or
involuntary, determined or undetermined, liquidated or unliquidated, due or to
become due, together with interest, costs, expenses, attorneys' fees and other
tees and charges, whether or not any such indebtedness may be barred under any
statute of limitations or may be otherwise unenforceable or voidable for any
reason.
ADDITIONAL PROVISION. Borrower covenants and agrees with Lender that Borrower
will notify Lender if The Xxxxx 8, Wollensky Restaurant Group, Inc. or any of
its subsidiaries are not in compliance (default) with any financial or
non-financial covenants with other financial institutions. Failure to comply
with this provision shall constitute a default hereunder and shall entitle
Lender to exercise all remedies provided hereunder.
DEBT SERVICE COVERAGE COVENANT. Borrower covenants and agrees with Lender that
as long as this Note is in effect, Borrower shall maintain, at all times, a Debt
Service Coverage of no less than 1.1oX, where "Debt Service Coverage" is the
result of the following formula; Cash Flow divided by Debt Service, where Cash
Flow means the net income (loss) of Borrower for a period, plus any interest
expense, plus any tax expense, plus any depreciation or amortization expense,
recorded in that same period. Debt Service means, for a period, the sum of all
scheduled principal and interest payments on debt (including any capitalized
leases) during the period, including that portion of any long term debt that is
due within the period.. The determination of Net Income, the expense items, and
debt payments shall be based on the Borrower's financial statements, prepared in
accordance with Generally Accepted Accounting Principles (GAAP), submitted to
Lender with the degree of diligence and timeliness as required herein or in any
loan or other agreement relating to or governing repayment hereunder. Failure to
comply with this provision shall constitute a default hereunder, and shall
entitle Lender to exercise all remedies provided herein.
BUSINESS LOAN AGREEMENT (Continued)
Page 5
Miscellaneous Provisions. The following miscellaneous provisions are a part of
this Agreement:
Amendments. No amendment, modifications, consent or waiver of any provision at
this Agreement, and no consent to any departure by Borrower therefrom, shall be
effective union the same shall be In writing signed by a duly authorized officer
of Lender, and then shall be effective only as to the specific instance and for
the specific purpose for which given.
Attorneys' Fees. Expenses. Borrower agrees to pay upon demand all of Lender's
costs and expenses, including Lender's reasonable attorneys' fees in an amount
not exceeding 25.000% of the principal balance duo on the Loan and Lender's
legal expenses, incurred in connection with the enforcement of this Agreement.
Lender may hire or pay someone else to help enforce this Agreement, and Borrower
shall pay the costs and expenses of such enforcement. Costs and expense include
Lender's reasonable attorneys' fees in an amount not exceeding 25.000% of the
principal balance due on the Loan and legal expenses whether or not there is a
lawsuit, including reasonable attorneys' fees in an amount not exceeding 25.000%
of the Lender's principal balance due on the Loan and legal expenses for
bankruptcy proceedings (including efforts to modify or vacate any automatic stay
or injunction), appeals, and any anticipated post-judgment collection services.
Borrower also shall pay all court cost and such addi5onal fees as may be
directed by the court
Caption Headings. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement
Consent to Loan Participation. Borrower agrees and constants to Lender's sale or
transfer, whether now or later, of one or more participation interests in the
Loan to one or more purchasers, whether related or unrelated to Lender. Lender
may provide, without any limitation whatsoever, to any one or more purchasers,
or potential purchasers, any information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower hereby
waives any right to privacy Borrower may have with respect to such matters.
Borrower additionally waives any and all notices of sale of participation
interests, as well as all notices of any repurchase ace of such participation
interests. Borrower also agrees that the purchasers of any such participation
interests will be considered as the absolute owners of such interests in the
Loan and will have all the rights granted under the participation agreement or
agreements governing the sale of such participation interests. Borrower further
waives all right of offset or counterclaim that it may have now or later against
Lender or against any purchaser of such a participation interest and
unconditionally agrees that either Lender or such purchaser may enforce
Borrower's obligation under the Loan irrespective of the failure or insolvency
of any holder of any interest in the Loan. Borrower further agrees that the
purchaser of any such participation interest may enforce Its interests
irrespective of any personal claims or defenses that Borrower may have against
Lander.
Governing Law. This Agreement will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Louisiana. This
Agreement has been accepted by Lender in the State of Louisiana.
No Waiver by Lender. Lender shall not be deemed to have waived any right under
this Agreement unless such waiver is given in writing and signed by Lender. No
delay or omission on the part at Lender in exercising any right shall operate as
a waiver at such right or any other right A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Borrower, or between Lender and any Grantor, shall constitute a
waiver of any of Lender's rights or of any of Borrower's or any Grantor's
obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent to subsequent instances where
such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Notices. To give Borrower any notices required under this Agreement, Lender may
hand deliver or mail the notice Borrower at Borrower's last address in Lender's
records. If there is more than one Borrower under this Agreement, notice to a
single Borrower shall be considered as notice to all Borrowers. To give Lender
any notice under this Agreement, Borrower (or any Borrower) shall mail the
notice to Lander by registered or certified mail at the address specified in
this Agreement, or at any other address that Lender may have given to Borrower
(or any Borrower) by written notice as provided in this section. All notices
required or permitted under this Agreement shall be in writing and wi1s be
considered as given on the day it is delivered by hand or deposited in the U.S.
Mail as provided herein.
Severability. If any provision of this Agreement is held to be Illegal, Invalid
or unenforceable under present or future laws effective during the term hereof,
such provision shall be fully severable. This Agreement shall be construed and
enforceable as if the illegal, invalid or unenforceable provision had never
comprised a part of it, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by any severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
Subsidiaries and Affiliates of Borrower. To the extent the context of any
provisions of this Agreement makes it appropriate, including without limitation
any representation, warranty or covenant, the word "Borrower" as used in this
Agreement shall include all of Borrower's subsidiaries and affiliates.
Notwithstanding the foregoing however, under no circumstances shall this
Agreement be construed to require Lender to make any Loan or other financial
accommodation to any of Borrower's subsidiaries and affiliates.
Successors and Assigns. All covenants and agreements by or on behalf of Borrower
contained in this Agreement or any Related Documents shall bind Borrower's
successors and assigns and shall inure to the benefit of Lender and its
successors and assigns. Borrower shall not, however, have the right to assign
Borrower's rights under this Agreement or any interest therein, without the
prior written consent of Lender.
Survival of Representations and Warranties. Borrower understands and agrees that
in making the Loan, Lender is relying on all representa5ons, warranties, and
covenants made by Borrower in this Agreement or in any certificate or other
instrument delivered by Borrower to Lender under this Agreement or the Related
Documents. Borrower further agrees that regardless of any investigation made by
Lender, all such representations, warranties and covenants will survive the
making of the Loan and delivery to Lender of the Related Documents, shall be
continuing in nature, and shall remain in full force and effect until such time
as Borrower's Indebtedness shall be paid in full, or until this Agreement shall
be terminated in the manner provided above, whichever is the last to occur.
Waive Jury. All parties to this Agreement hereby waive the right to any Jury
trial in any action, proceeding, or counterclaim brought by any party against
any other party.
Definitions. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts In lawful money of
the United States at America. Words and terms used in the singular shall Include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Louisiana Commercial Laws (La. R,S. 10:
9-101, et seq.). Accounting words and terms not otherwise defined in this
Agreement shall have the meanings assigned to them in accordance with generally
accepted accounting principles as In effect on the date of this Agreement:
Advance. The word "Advance" means a disbursement of Loan funds made, or to be
made, to Borrower or on Borrower's behalf on a line of credit or multiple
advance basis under the terms and conditions of this Agreement.
Agreement. The word Agreement' means this business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time, together
with all exhibits and schedules attached or to be attached to this Business Loan
Agreement from time to time.
Articles. The word "Articles" means and includes Borrower Articles of
Organization as presently on file with Office of the Louisiana Secretary of
State, and as such Articles may subsequently be amended or modified from time to
time, one or more times.
Authorize Representatives. The words "Authorized Representatives" mean and
include, Individually, collectively, interchangeably, any and all persons
authorized by Borrower's Members or Managers to act for and on behalf of
Borrower In dealings with Lender.
Borrower. The word "Borrower" means S & W New Orleans, L.L.C, and includes all
co-signers and co-makers signing the Note.
Collateral. The word "Collateral" means all property and assets granted as
collateral security for a Loan, whether real or personal property, whether
granted directly or indirectly, whether granted now or in the future, and
whether granted in the form of a security Interest, mortgage, collateral
mortgage, deed at trust, assignment, pledge, crop pledge, chattel mortgage,
collateral chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention contract,
lease or consignment Intended as a security device, or any other security or
lien interest whatsoever, whether created by law, contract, or otherwise.
Environmental Laws. The words Environmental Laws" mean any and all state,
federal end local statutes, regulations and ordinances relating to the
protection of human health or the environment, including without limitation the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments
and Reauthorization Act of 1ase, Pub. L No, 99-409 ?"), the Hazardous Materials
Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, at seq., or other applicable state or
federal laws, rules, or regulations adopted pursuant thereto.
Event of Default. The words "Event of Default" mean any of the events of default
set forth in this Agreement in the default section o1 this Agreement.
BUSINESS LOAN AGREEMENT (Continued)
Page 6
GAAP. The word "GAAP" means generally accepted accounting principles.
Grantor. The word "Grantor" means each and all of the persons or entities
granting a Security Interest in any Collateral for the Loan, including without
limitation all Borrowers granting such a Security Interest.
Guarantor. The word "Guarantor" means any guarantor, surety, or accommodation
party of any or all of the Loan.
Hazardous Substances. The words "Hazardous Substances" mean materials that,
because of their quantity, concentration or physical, chemical or infectious
characteristics, may cause or pose a present or potential hazard to human health
or the environment when improperly used, treated, stored, disposed of,
generated, manufactured, transported or otherwise handled. The words "Hazardous
Substances" are used in their very broadest sense and include without limitation
any and all hazardous or toxic substances, materials or waste as defined by or
listed under the Environmental Laws. The term "Hazardous Substances" also
includes, without limitation, petroleum and petroleum by-products or any
fraction thereof and asbestos.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the
Note or Related Documents, in principal, interest, costs, expenses and
attorneys' fees and all other fees and charges together with all other
indebtedness and costs and expenses for which Borrower is responsible under this
Agreement or under any of the Related Documents.
Lender. The word "Lender" means Hibernia National Bank, its successors and
assigns, and any subsequent holder or holders of Borrower's Loan and Note, or
any interest therein.
Loan. The word "Loan" means any and all loans and financial accommodations from
Lender to Borrower whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations described
herein or described on any exhibit or schedule attached to this Agreement from
time to time.
Member. The word "MEMBER" means and include, individually, collectively,
interchangeably, any and all present and future member owners of Borrower.
Membership Interest. The words "MEMBERSHIP INTEREST' mean and include a Member's
ownership rights and interest in Borrower, including without limitation, a
Member's share of the profits and losses of Borrower, right to receive
distributions of Borrower's assets, and any right to vote or participate in the
management and affairs of Borrower.
Note. The word "Note" means the Note executed by S & W New Orleans, L.L.C. in
the principal amount of $2,000,000.00 dated May 26, 2004, together with all
renewals, extensions, modifications, refinancings, consolidations and
substitutions of and for the note or credit agreement.
Operating Agreement. The words "Operating Agreement" mean any agreement between
Borrower's Members governing the affairs of Borrower and the conduct of its
business.
Permitted Liens. The words "Permitted Liens" mean (a) liens and security
interests securing Indebtedness owed by Borrower to Lender; (b) liens for taxes,
assessments, or similar charges either not yet due or being contested in good
faith; (c) liens of materialmen, mechanics, warehousemen, or carriers, or other
like liens arising in the ordinary course of business and securing obligations
which are not yet delinquent; (d) purchase money liens or purchase money
security interests upon or in any property acquired or held by Borrower in the
ordinary course of business to secure indebtedness outstanding on the date of
this Agreement or permitted to be incurred under the paragraph of this Agreement
titled "Indebtedness and Liens"; (e) liens and security interests which, as of
the date of this Agreement, have been disclosed to and approved by the Lender in
writing; and (1) those liens and security interests which in the aggregate
constitute an immaterial and insignificant monetary amount with respect to the
net value of Borrower's assets.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Loan.
Security Agreement. The words "Security Agreement" mean and include
individually, collectively, interchangeably and without limitation any
agreements, promises, covenants, arrangements, understandings or other
agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security Interest.
Security Interest. The words "Security Interest' mean, without limitation, any
and all types of collateral security, present and future, whether in the form of
a lien, charge, encumbrance, mortgage, deed of trust, security deed, assignment,
pledge, crop pledge, chattel mortgage, collateral chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or
title retention contract, lease or consignment intended as a security device, or
any other security or lien interest whatsoever whether created by law, contract,
or otherwise.
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT AND BORROWER AGREES TO ITS TERMS. THIS BUSINESS LOAN AGREEMENT IS
DATED MAY 26, 2004.
BORROWER:
S & W NEW ORLEANS, LL.C.
THE XXXXX & WOLLENSKY RESTAURANT GROUP, INC.,
Member of S & W New Orleans, L.L.C.
/ S / Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx, Executive Vice President of The
Xxxxx & Wollensky Restaurant Group, Inc.
LENDER:
HIBERNIA NATIONAL BANK
By: Authorized Signer
