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EXHIBIT 10.3
LOAN AGREEMENT
KENWOOD RESTAURANT LIMITED PARTNERSHIP, an Ohio limited partnership
("Borrower"), and PNC BANK, OHIO, NATIONAL ASSOCIATION, a national banking
association ("Lender"), hereby agree as follows:
1. DEFINITIONS. The following terms as used herein will have the
following meanings:
1.1 AGREEMENT. This Loan Agreement, including any amendments,
extensions, renewals or modifications made thereto from time to time.
1.2 ATTORNEYS' FEES. The reasonable value of the services (and all
costs and expenses related thereto) of the attorneys (and all paralegals and
other staff employed by such attorneys) employed by Lender from time to time to:
(i) take any action in or with respect to any suit or proceedings (bankruptcy or
otherwise) relating to the Collateral or this Agreement; (ii) protect, collect,
lease or sell, any of the Collateral; (iii) attempt to enforce any lien on any
of the Collateral or to give any advice with respect to such enforcement; (iv)
enforce any of Lender's rights to collect any of the Obligations; and (v) give
Lender advice with respect to this Agreement, including but not limited to with
respect to any default or to prepare any amendments, restatements, or waivers to
this Agreement or any of the documents executed in connection with any of the
Obligations.
1.3 BUDGET. The detailed for the construction and development costs
of the Project, including site improvements, buildings and other improvements,
interest expense, professional fees, and all other costs incurred in connection
with the Project, broken down into expense categories and showing a projected
expenditure for each category. A copy of the Budget is attached hereto as
Exhibit A.
1.4 CLOSING. The execution and delivery of the documents listed on
the Closing Memo.
1.5 CLOSING DATE. The date on which this Agreement is executed.
1.6 CLOSING MEMO. The Closing Memorandum between Borrower and Lender
in connection with the transactions represented by this Agreement.
1.7 COLLATERAL. Any property, real or personal, tangible or
intangible, now or in the future securing the Obligations, including but not
limited to the Collateral secured by the Security Documents.
1.8 COMPLETION DATE. For purposes of this Agreement, the completion
date will be December 31, 1996, by which date Borrower will have complied with
the requirements contained in the Section of this Agreement entitled
Requirements Prior to Final Disbursement.
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1.9 CURRENT FINANCIAL STATEMENTS. For purposes of making the
representations and warranties contained in Section 5, the following financial
statements of Borrower: (none for current year), and the following financial
statements of Guarantor: (dated June 30, 1996). For purposes of any future date
on which the representations and warranties contained in Section 5 are deemed to
be remade, the most current financial statements, tax returns or other documents
with respect to Borrower or any Guarantor (as applicable) delivered to Lender in
accordance with Section 6.
1.10 DEFAULT RATE. The rate of interest otherwise payable under the
Note plus 4% per annum, but not higher than the highest rate permitted under
applicable law.
1.11 ENVIRONMENTAL REPORT. The environmental site assessment of the
Property in Proper Form delivered to Lender in connection with the Closing.
1.12 EVENT OF DEFAULT. Any of the events listed in Section 8.
1.13 GUARANTOR(S), Xxxxxxx X. Xxxx, Kenwood Restaurant, Inc., and any
other Person in the future guaranteeing all or any part of the Obligations,
jointly and severally.
1.14 IN BALANCE. When the undistributed proceeds of the Loan equal
or exceed the amount necessary, based upon Lender's estimate, in its sole
discretion, of the cost of construction from time to time, to pay for all work,
labor and materials for the completion of the construction of the Project in
accordance with the Plans and Specifications, including the payment of all
retainages, the installation of all fixtures, equipment and finishes, and also
to pay amounts necessary for the estimated or actual costs of start-up expenses,
interest and all other non-construction costs associated with the Project.
1.15 INDEBTEDNESS. Without duplication: (i) all obligations
(including capitalized lease obligations) which in accordance with generally
accepted accounting principles would be shown on a balance sheet as a liability;
(ii) all obligations for borrowed money or for the deferred purchase price of
property or services; and (iii) all guarantees, reimbursement, payment or
similar obligations, absolute, contingent or otherwise, under acceptance, letter
of credit or similar facilities.
1.16 INSPECTOR. The architect, engineer and/or inspector employed by
Lender, whether or not a licensed professional, at the expense of Borrower to:
(i) review for Lender the Plans and Specifications, (ii) to review for Lender
work performed on and materials furnished in connection with the monthly
construction draws for the Project and (iii) advise Lender from time to time
regarding the Project.
1.17 LEASES. Will have the meaning given that term in the Mortgage.
1.18 LOAN. The Loan in the amount of $1,000,000 evidenced by the
Note, to be used solely for the construction, development and operation of the
Project.
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1.19 LOAN DOCUMENTS. The documents listed on the Closing Memo and
all amendments thereto and restatements thereof.
1.20 MORTGAGE. The Open-End Mortgage, Assignment of Rents and Leases
and Security Agreement (Leasehold Estate) dated August 23, 1996 from Borrower to
Lender, and all amendments thereto and restatements thereof, encumbering the
Project and securing payment of the Note. The Mortgage is filed in Book 7133,
Page 1338, Registered Land Certificate Number 160105, of the Xxxxxxxx County,
Ohio records, which shall be amended by a certain First Amendment to Open-End
Mortgage, Assignment of Rents and Lease and Security Agreement, of even date
herewith.
1.21 NOTE. Borrower's promissory note of even date herewith
evidencing the Loan, and all extensions, amendments, modifications and
restatements thereof.
1.22 OBLIGATIONS. All loans, advances, debts, liabilities,
obligations, covenants and duties owing to Lender from Borrower of any kind or
nature, present or future, whether or not evidenced by any note, guaranty or
other instrument, whether arising under this Agreement or under any other
agreement, instrument or document, whether or not for the payment of money,
whether arising by reason of an extension of credit, opening of a letter of
credit, loan, guaranty, indemnification or in any other manner, whether direct
or indirect (including those acquired by assignment, participation, purchase,
negotiation, discount or otherwise), absolute or contingent, joint or several,
due or to become due, now existing or hereafter arising and whether contemplated
by Borrower or Lender as of the execution of this Agreement. The term includes,
without limitation, all obligations under this Agreement, the Loan, the Note and
all charges, expenses, fees, Attorneys' Fees and any other sums chargeable to
Borrower under this Agreement or any other agreement with Lender.
1.23 ORGANIZATIONAL DOCUMENTS. With respect to any Person that is a
limited liability company, the articles or certificate of organization and the
limited liability company agreement or operating agreement of such limited
liability company; with respect to any Person that is a corporation, the
articles or certificate of incorporation, and bylaws or regulations of such
corporation; with respect to any Person that is a partnership, the partnership
agreement establishing such partnership; with respect to any Person that is a
joint venture, the joint venture agreement establishing such joint venture; and
with respect to any Person that is a trust, the instrument establishing such
trust; in each case including any and all modifications thereof as of the date
of the Loan Document referring to such Organizational Document, and any and all
future amendments thereto and restatements thereof which are consented to by
Lender.
1.24 PERMITTED EXCEPTIONS. Those exceptions listed on the title
insurance commitment for the Property delivered in connection with the Closing
(and not deleted by the Title Insurance Company in connection with the Closing)
and such other exceptions approved from time to time by Lender in writing.
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1.25 PERSON. An individual, partnership, joint venture, trust,
unincorporated association, corporation, limited liability company or other
entity, as applicable.
1.26 PLANS AND SPECIFICATIONS. The final plans and specifications
for the Project, to be submitted to and approved by Lender. The Plans and
Specifications, and all modifications thereto made in accordance with this
Agreement, the Project when completed in accordance with the Plans and
Specifications, and the contemplated use of the Property will be in full
compliance in all material respects with all federal, state, and municipal laws,
statutes, ordinances, regulations and restrictions affecting the Project,
including those dealing with building, zoning, environmental impact, setbacks,
safety, pollution control, the Americans with Disabilities Act, and flood area
regulation.
1.27 PROJECT. The retail building to be constructed on the Real
Estate in substantial accordance with the Plans and Specifications and all
improvements in connection therewith, including but not limited to site
improvements, utility services and parking areas.
1.28 PROPER FORM. Any document that is in form, substance, and, if
applicable, executed by a Person, satisfactory to Lender.
1.29 PROPERTY. The Property as defined in the Mortgage.
1.30 REAL ESTATE. The Real Estate as defined in the Mortgage.
1.31 RESTAURANT LEASE. The Lease Agreement and Indenture of Lease,
each dated November 9, 1994, as amended by a certain First Amendment to Lease
dated May 3, 1995, and further amended by a certain Second Amendment to Lease,
by and between Xxxxxx X. Xxxxxxx, Trustee, and Borrower, as now Lessor and
Lessee respectively, together with all amendments thereto hereafter expressly
approved, in writing, by Lender in accordance with the provisions of this
Agreement.
1.32 REQUEST(S) FOR ADVANCE. A statement in Proper Form of Borrower,
and of the architect or professional engineer and the contractor for the
Project, in the form of attached Exhibit B or such other form required by Lender
which statement will include an AIA Form G702/G703 or such other form required
by Lender, accurately reflecting the current status of construction funds,
setting forth the amount of the Loan requested to be disbursed and containing
such other statements and certifications as Lender may require.
1.33 SECURITY DOCUMENTS. The agreements, pledges, mortgages,
guarantees, or other documents delivered by Borrower or any person or entity to
Lender previously, now or in the future to encumber the Collateral in favor of
Lender, including but not limited to those listed on the Closing Memo, and all
amendments thereto and restatements thereof.
1.34 SURVEY. INTENTIONALLY DELETED.
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1.35 TITLE COMPANY. The title insurance company acceptable to Lender
in its sole discretion that issues the Title Insurance Policy.
1.36 TITLE INSURANCE POLICY. An ALTA Mortgagee's title insurance
policy, including such endorsements as Lender may designate, in Proper Form to
be issued by the Title Company in the amount of the Loan insuring the lien of
the Mortgage as a first lien on the Property subject only to Permitted
Exceptions (the standard exceptions, including those for mechanics liens and
survey, being deleted from such policy).
2. THE LOAN.
2.1 THE LOAN. Borrower will borrow from Lender and Lender will lend
to Borrower the Loan for the purposes and subject to the terms, provisions and
conditions of this Agreement. The Loan will be for the term, bear interest and
be payable as provided in the Note.
2.2 LOAN FEES. Borrower agrees to pay to Lender a construction fee
equal to one percent (1%) of the principal amount of the Loan ($10,000) (the
"Construction Fee"). The Construction Fee will be paid to Lender at Closing.
2.3 CLOSING COSTS. Borrower agrees to pay to Lender at Closing a
reasonable sum for expenses and Attorneys Fees incurred by Lender in connection
with the preparation, execution and delivery of this Agreement and the attendant
documents and the consummation of the transactions contemplated hereby together
with all recording fees and taxes, tax and title search charges, title insurance
premiums and costs, and real property taxes.
2.4 EXPENSES AND ADVANCES SECURED BY MORTGAGE. All disbursements,
advances or payments made by Lender hereunder or under the other Loan Documents
will be secured by the Mortgage. Lender and Borrower acknowledge and agree that
the Mortgage has been executed and recorded prior to the effective date of this
Agreement and the extension of the Loan by and between a Lender and Borrower,
and that all disbursements of the Loan in accordance with this Agreement
constitute future advances for the purpose of Section 7.1 of the Mortgage and
the other provisions thereof. Such disbursements shall be secured by the
Mortgage with the original priority entitled thereof, effective the recordation
date of the Mortgage. Nothing contained in the Loan Documents shall in any
manner affect the original priority entitled of the Mortgage, it being
understood that the Loan Documents have been executed in furtherance of the
provisions of the Mortgage.
2.5 ADDITIONAL COSTS. On written demand, together with written
evidence of the justification therefor, Borrower agrees to pay Lender all direct
costs incurred and any losses suffered or payments made by Lender as a
consequence of making the Loan by reason of any change in law or regulation or
its interpretation imposing any reserve, deposit, allocation of capital or
similar requirement (including without limitation, Regulation D of the Board of
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Governors of the Federal Reserve System) on Lender, its holding company or any
of their respective assets.
2.6 MECHANIC'S LIENS. Lender and Borrower acknowledge that
construction of the Project commenced approximately during the month of
November, 1995 prior to the effective date of this Agreement or the extension of
the Loan to Borrower. Nothing herein shall constitute, or be deemed to be, a
waiver by Lender of any of the provisions contained in this Agreement as to the
obligation to discharge any lien, claim or suit filed with respect to the
Project or Borrower's agreement to indemnify and save harmless Lender therefrom
as provided in this Section. It shall be the responsibility of Borrower to
strictly comply with all the provisions of this Section and the other provisions
of this Agreement with respect to the filing of any lien, claim or suit with
respect to the Project. Borrower acknowledges and agrees that any mechanic's or
other lien filed against the Project or any claim for payment made by any
contractor, subcontractor or materialman will be Borrower's sole responsibility
to satisfy. Borrower agrees to immediately discharge or to bond-off of record
any lien, claim or suit filed against the Project. Borrower further agrees to
indemnify and save harmless Lender from all claims, losses, damages and expenses
including without limitation, reasonable attorney fees and court costs arising
out of any lien, claim or suit filed with respect to the Project or otherwise.
In the event that there is a lien or claim for payment filed against the
Project, Lender will be entitled to suspend any further disbursements until the
same is discharged or bonded in accordance with the Section.
3. REQUIREMENT FOR DISBURSEMENTS.
3.1 REQUIREMENTS FOR INITIAL DISBURSEMENTS. Lender will not be
required to make any disbursements under the Loan unless and until Borrower will
have furnished or delivered to Lender, in Proper Form, the documents listed on
the Closing Memorandum, including but not limited to all the following:
3.1.1 APPRAISAL. At Borrower's expense, Lender has required an
appraisal, indicating the combined aggregate value of the Property following the
completion of the Project of not less than $2,250,000. The appraisal reports
and procurement process therefor will be made in accordance with the current
regulations of the Department of the Treasury, Office of the Comptroller of the
Currency, 12 C.F.R., Part 34, Subpart C, Appraisals with respect to the Loan, as
the same may be amended. In no event will the loan-to-value ratio with respect
to the Loan at any time exceed 50%. Lender will have the right to reappraise
the Property and the Project at any time and from time to time: (i) after the
occurrence of an Event of Default, (ii) if Lender reasonably believes that the
value of the Project has decreased by more than 10% from the last appraisal
received by it or (iii) Lender is required to do so by applicable regulatory
standards. The appraisal and any reappraisal of the Property will be addressed
to Lender. The cost of the appraisal and any reappraisal obtained after the
occurrence and during the continuance of an Event of Default will be paid by
Lender and immediately reimbursed by Borrower. All other reappraisals elected
by Lender will be at Lender's expense. The appraisal
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and any reappraisal will be in Proper Form and any appraiser will meet all
Federal and state standards as well as Lender's internal standards.
3.1.2 ENVIRONMENTAL. Borrower at its expense will provide a
"Phase I" environmental site assessment for the Property in Proper Form. Such
report will indicate that the Property is not and has not been affected by the
presence of any toxic or hazardous substance or waste, or underground storage
tanks, or any other pollutants that could be detrimental to the Project or the
Property, or to human health or to the environment, that the Property and is not
in violation of any local, state or federal laws or regulations and that no
environmental problems exist with respect to the Property. Borrower hereby
certifies to Lender that except as disclosed in the Environmental Report: (i)
the Property shows no visible signs of the presence of toxic or hazardous
substances or water, underground storage tanks, or environmental problems, and
(ii) Borrower has no reason to believe that any such substance or waste, or
underground storage tanks or any environmental problems exist. Borrower also
will provide evidence satisfactory to Lender, which evidence will be prepared by
an environmental engineer approved by Lender, that the Property does not
contain any areas which constitute wetlands as that term is defined by
applicable federal or state law, and that there has been no unpermitted filling
of wetlands at the Property.
3.1.3 FLOOD INSURANCE. Evidence that the Property is not
located in a flood zone. If the Property is located in a flood zone, then
Borrower, prior to any disbursement under the Loan for vertical improvements at
the Project, Borrower must either (i) provide flood insurance coverage for the
Project in Proper Form or (ii) undertake such action necessary to have the
location of all improvements at the Property removed from the flood zone.
3.1.4 EQUITY CONTRIBUTION. Evidence in Proper Form that
Borrower has expended its equity requirement for the Project of at least
$2,500,000.00 (or such greater amount as indicated by the excess of all costs
for the Project as shown on the Budget over the amount of the Loan), including a
schedule of costs incurred and paid to meet such equity requirement. Such
equity requirement must be expended prior to any advance under the Loan.
3.1.5 CONSTRUCTION CONTRACT. Provide to Lender executed copies
of the contract between the general contractor for the Project and Borrower (the
"Construction Contract"), which will be a guaranteed maximum price contract; the
general contractor's qualification statement in Proper Form, and assignment and
acknowledgment of the assignment, of such contract to Lender; and, if requested
by Lender, executed copies of all subcontracts between any general contractors
and all of their subcontractors and suppliers, including contracts, subcontracts
and purchase orders for all fixtures and equipment to be installed as are
required for the completion of the Project. If in the judgment of Lender such
contracts do not cover all of the work necessary for completion of the Project,
Borrower will cause to be furnished firm bids, estimates and other information
satisfactory to Lender, for the work not so covered, to enable Lender to
ascertain the total estimated cost of all work to be done.
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3.1.6 INSPECTION REPORT. Lender will receive a report from the
Inspector concerning the existing condition of the Property and the status of
construction of the Project, construction documentation related to the Project,
adequacy of the Budget, the value of the work performed and materials furnished,
the construction schedule for the remaining construction work and such other
matters as Lender may elect to review, all of which will be satisfactory to
Lender in its sole discretion. Lender and/or the Inspector may reinspect the
Project from time to time, in Lender's sole discretion at Borrower's expense, to
determine among other things, the progress of redevelopment, to verify the
percentage of completion and to determine whether the work has been performed in
accordance with the Plans and Specifications.
3.1.7 RESTAURANT LEASE. Evidence that the Restaurant Lease is
in full force and effect and the Lessor and Borrower thereunder are in full
compliance with the provisions of the Restaurant Lease.
3.1.8 BONDS. INTENTIONALLY DELETED.
3.1.9 STATUS OF CONSTRUCTION. Evidence that the construction of
the Project is in full compliance with all applicable local, state and federal
laws and the requirements of the Restaurant Lease and that all laborers,
suppliers, equipment lessors, contractors and other parties who have furnished
materials, labor, work or equipment through September 1996, have been fully
paid, except for retainage held by Borrower in accordance with the applicable
agreement for such work, labor, materials and equipment.
3.2 REQUIREMENTS FOR EACH DISBURSEMENT. In addition to the
requirements for initial disbursements hereunder, Lender will not be required to
make any disbursements under the Loan unless and until it has received a
Request for Advance relating to such disbursement and each of the following
conditions have been satisfied for each disbursement:
3.2.1 GENERAL. All warranties and representations made under
this Agreement will remain true and correct as of the effective date of the
disbursement, and, subject to the terms of the Mortgage with regard to casualty
and condemnation, there will have been no condemnation of or material damage to
the Property or the Project unless there are available condemnation or insurance
proceeds sufficient, in the sole judgment of Lender, to effect the satisfactory
restoration of the Project and/or the Property and to permit the completion of
the Project prior to the Completion Date, and no Event of Default will have
occurred under this Agreement which has not been cured.
3.2.2 TITLE ENDORSEMENT. Lender will have received an ALTA
title endorsement to the Title Insurance Policy in Proper Form increasing the
amount of the title insurance on the Property to the amount that will have been
disbursed by Lender under the Note after the pending Request for Advance and
insuring that the Mortgage is a first lien on the Property subject only to
Permitted Exceptions.
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3.2.3 APPROVAL BY INSPECTOR. Lender will have received a
certificate from the Inspector stating that the work covered by the Request for
Advance has been performed in all material respects in accordance with the Plans
and Specifications, that the amount of the Request for Advance is accurate and
proper in accordance with this Agreement and that the percentage of the work
shown on the Request for Advance has been completed.
3.2.4 FOUNDATION SURVEY. INTENTIONALLY DELETED.
3.2.5 LOAN-IN-BALANCE. The Loan will be In Balance.
3.2.6 NOTICE OF FURNISHING. Borrower, and Borrower's designee
on the filed Notice of Commencement, will provide to Lender, at the time of each
request for disbursement, copies of all Notices of Furnishing received under
Ohio Revised Code Section 1311.05. Borrower will provide lien waivers and such
other documentation as Lender may reasonably request in Proper Form from all
Persons delivering a Notice of Furnishing and any other Persons furnishing labor
or materials to the Project.
3.2.7 BORROWER'S CERTIFICATE: BUDGET. At least 10 business days
prior to the date of the requested disbursement, Lender will have received a
certificate from Borrower stating that Borrower has paid or actually incurred
the construction costs for which the Request for Advance is made, and Lender
will have received an updated Budget showing the remaining projected expenditure
for each category of construction and development costs of the Project.
Borrower will obtain from each contractor and subcontractor, as requested, and
will furnish to Lender bills, invoices, or other written memoranda of services
performed or materials supplied by the proposed payee, before being entitled to
such disbursement.
3.2.8 AFFIDAVITS, WAIVERS, ETC. Lender will have received such
affidavits, supporting affidavits, certificates of suppliers and lien waivers
and releases for the work and materials covered by the Request for Advance from
such contractors, subcontractors, suppliers and laborers as Lender may require,
together with a certification of Borrower identifying all contractors,
subcontractors and suppliers who have performed work on or furnished materials
to the Project. Lender further will receive such additional certificates,
affidavits and other documents as Lender, from time to time, may require of
Borrower in Lender's sole discretion.
3.3 REQUIREMENTS PRIOR TO FINAL DISBURSEMENT. The following
requirements, in addition to the other requirements of this Section 3, will have
been met prior to a final disbursement under the Loan:
3.3.1 COMPLETION OF WORK. The Project will have been
substantially completed and equipped in all material respects in accordance with
the Plans and Specifications, and the Restaurant Lease, free and clear of
mechanics' liens, encumbrances and security interests other than the lien of the
Security Documents.
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3.3.2 ARCHITECT AND CONTRACTOR'S CERTIFICATES. Lender will have
received written certification from Borrower's architect or professional
engineer and general contractor in Proper Form to the effect that the Project
has been completed in all material respects in accordance with the Plans and
Specifications and the certificate of the architect or professional engineer
also will certify that the Project and the Property comply with all applicable
zoning ordinances, building and use regulations and codes and has received all
licenses, permits and city approvals necessary for the lawful use and operation
of the Project and the Property. In addition, Lender may request that such
certificates be verified by the Inspector.
3.3.3 CERTIFICATE OF OCCUPANCY. Borrower will have furnished to
Lender unconditional certificates of occupancy for the Project from the
governmental authorities having jurisdiction over the Project and Borrower.
3.3.4 INSURANCE. The builder's risk insurance on the Property
will have been converted to casualty and other insurance as required by the
Security Documents.
3.3.5 PERMITS, LICENSES. Borrower will have received all
licenses, permits, franchises, authorizations and approvals necessary or
desirable in connection with the operation of Borrower's business on the
Property, including but not limited to all health department licenses and
permits, liquor licenses, and business licenses, and all such licenses, permits,
franchises, authorizations and approvals shall be in full force and effect.
3.3.6 LESSOR APPROVAL. The Lessor under the Restaurant Lease
will have approved the Project and all other work involved in the Project and
Borrower's conduct of business therein. Further, such Lessor will have
provided Lender with an estoppel certificate, in Proper Form, confirming
Lessor's acceptance of the Project, Borrower's compliance with the provisions of
the Restaurant Lease and such additional matters as Lender may require.
3.3.7 ADDITIONAL DOCUMENTS. Borrower will have delivered such
other information and documentation as Lender may reasonably request.
3.3.8 FOUNDATION SURVEY. An as-built survey of the Project, in
Proper Form, prepared for the benefit of Borrower and Lender.
4. DISBURSEMENTS.
4.1 LENDER'S OBLIGATION TO DISBURSE. Lender agrees, so long as
Borrower is in compliance with all conditions precedent to disbursements
hereunder and provided the Loan is In Balance and no Event of Default has
occurred, to make disbursements of the Loan as provided in the Loan Documents.
Amounts disbursed and repaid will not be available for redisbursement to
Borrower. Borrower will utilize all disbursements made by Lender hereunder in
accordance with the provisions of this Agreement.
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4.2 MONTHLY PAYOUTS. Disbursements of the Loan will be made from
time to time upon delivery of a Request for Advance in Proper Form as
construction of the Project progresses, but Lender has no obligation to make
disbursements more frequently than once in any 30 day period. Each Request for
Advance will be delivered to Lender in Proper Form at least 10 business days
prior to the requested disbursement date.
4.3 AMOUNT OF DISBURSEMENT. Disbursements for construction of the
Project will be limited to: (a) the cost of all work, materials and labor
incorporated into the Project and materials stored on the Property
(collectively, "Hard Costs"), which Hard Costs will be determined by Lender or
the Inspector, less the Retainage (as described below), the aggregate amount of
all previous disbursements for Hard Costs and Borrower's total equity
requirement, and (b) 100% of all non-Hard Costs relating to the Project, to the
extent provided for in the Budget and supported by invoices not more than 90
days old, less the aggregate amount of all previous disbursements for non-Hard
Costs. All disbursements for Hard Costs will be subject to a retainage equal to
the greater of (a) 5% or (b) the percentage being withheld in all payments from
Borrower to the general contractor for non-Hard Costs. The Retainage will be 5%
of Hard Costs. No disbursements will be made for materials or personal property
not delivered to the Project. The retained Hard Costs will be disbursed by
Lender when the requirements under the Section captioned Requirements Prior to
Final Disbursement have been met. All such costs for which disbursement is made
will be costs shown for such item on the approved Budget. No disbursements will
be made for fees, profit and overhead of Borrower or any contractor. Lender
will have no obligation to disburse amounts shown in the Budget as a
"contingency" except as Lender may approve from time to time, regardless of the
percentage of completion of the Project.
4.4 DISBURSEMENT THROUGH TITLE COMPANY. Disbursements of proceeds of
the Loan, at Lender's election, may be made through the Title Company. Borrower
agrees to execute such documents and pay such fees as the Title Company may
require to authorize such disbursements.
4.5 DIRECT PAYMENT OF DISBURSEMENTS. Without liability to Borrower,
Lender or the Title Company, at their sole option, may make any or all
disbursements directly to any contractor or subcontractor or materialman
irrespective of whether there is a dispute between Borrower and contractor as to
such payment, and such disbursement will be binding on Borrower. The execution
of this Agreement by Borrower constitutes an irrevocable direction and
authorization to make such direct disbursements. Notwithstanding the foregoing,
Lender at its option may make disbursements to Borrower's construction account
with Lender and Borrower will be responsible for making all payments due to any
contractor, subcontractor or materialman.
4.6 ACQUIESCENCE NOT A WAIVER. To the extent that Lender may
have acquiesced in noncompliance with any requirements precedent to the
disbursement of the proceeds of the Loan, such acquiescence will not constitute
a waiver by Lender and Lender at any time after such acquiescence may require
Borrower to comply with all such requirements.
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4.7 INTEREST PAYMENTS. Notwithstanding anything to the contrary
contained herein, if a disbursement is not properly presented by Borrower and
processed by Lender before the tenth day of each month, Lender may, without
further authorization, draw on the Loan to pay interest due and payable on the
Loan if such interest has not been paid prior to such date.
4.8 LOAN-IN-BALANCE. Anything in this Agreement to the contrary
notwithstanding, it is expressly understood and agreed that the Loan at all
times will be In Balance. If for any reason the Loan ceases to be In Balance,
regardless of how such condition may be caused, Borrower, within ten (10) days
after written request by Lender, will deposit with Lender a sum sufficient to
place the Loan In Balance, which deposit will first be exhausted before any
further disbursements under the Loan will be made.
5. WARRANTIES AND REPRESENTATIONS. To induce Lender to make the Loan,
Borrower hereby represents and warrants to Lender, and each Request for Advance
will constitute a reaffirmation, that as to itself and each Guarantor:
5.1 ORGANIZATION. It is duly constituted and qualified to transact
business in all jurisdictions where required by the conduct of its business or
ownership of its assets except where the failure to so qualify would not have a
material adverse effect on its condition, financial or otherwise, and has the
power and authority to own and operate its assets and to conduct its business as
is now done.
5.2 LATEST FINANCIALS. Its Current Financial Statements as delivered
to Lender are true, complete and accurate in all material respects and fairly
present its financial condition, assets and liabilities, whether accrued,
absolute, contingent or otherwise and the results of its operations for the
periods specified therein. The annual financial statements of all business
entities included in the Current Financial Statements have been prepared in
accordance with generally accepted accounting principles applied consistently
with preceding periods subject to any comments and notes contained therein.
5.3 RECENT ADVERSE CHANGES. Since the dates of its Current Financial
Statements, it has not suffered any damage, destruction or loss which has
materially and adversely affected its business or assets and no event or
condition of any character has occurred which has materially and adversely
affected its assets, liabilities, business or financial condition, and it has no
knowledge of any event or condition which may materially and adversely
affect its assets, liabilities, business, or financial condition.
5.4 RECENT ACTIONS. Since the dates of its Current Financial
Statements, its business has been conducted in the ordinary course and it has
not: (i) incurred any obligations or liabilities, whether accrued, absolute,
contingent or otherwise, other than liabilities incurred and obligations under
contracts entered into in the ordinary course of business and other than
liabilities to Lender; (ii) discharged or satisfied any lien or encumbrance or
paid any obligations, absolute or contingent, other than current liabilities, in
the ordinary course of business; (iii) mortgaged, pledged or subjected to lien
or any other encumbrance any of its assets, tangible or
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intangible, or cancelled any debts or claims except in the ordinary course of
business; or (iv) made any loans or otherwise conducted its business other than
in the ordinary course.
5.5 TITLE. It has good and marketable title to the assets reflected
on its Current Financial Statements, free and clear from all liens and
encumbrances except for: (i) current taxes and assessments not yet due and
payable, (ii) liens and encumbrances, if any, reflected or noted on said balance
sheet or notes, (iii) any security interests, pledges or mortgages to Lender in
connection with the closing of this Agreement, (iv) assets disposed of in the
ordinary course of business, and (v) Permitted Exceptions.
5.6 RESTAURANT LEASE. The Restaurant Lease is a legal, valid and
binding obligation of the parties thereto enforceable against them in accordance
with its terms and is in full force and effect and Borrower is not, and to
Borrower's knowledge the landlord thereunder is not, in default of any term or
provision thereof, including without limitation Borrower's compliance with the
construction schedule contained therein. There have been no threatened
cancellations of the Restaurant Lease nor any material disputes thereunder. A
true and complete copy of the Restaurant Lease is attached hereto as Schedule
5.6 and made a part hereof, and there are no modifications, supplements or
waivers of any provision contained therein.
5.7 FRANCHISE AGREEMENT. The License Agreement dated June 28, 1995,
by and between Hotel Mexico, Inc., as licensor, and Borrower, as licensee, is in
full force and effect, is a legal, valid and binding obligation of the parties
thereto enforceable against them in accordance with its terms, and Borrower is
not, and to Borrower's knowledge, Hotel Mexico, Inc. is not, in default of any
term or provision thereof. A true and complete copy of said Franchise Agreement
is attached hereto as Schedule 5.7 and made a part hereof, and there are no
modifications, supplements or waivers of any provision contained therein.
5.8 CONSTRUCTION. From the date of commencement of construction of
the Project through the date hereof, the Project has been constructed in all
material respects in accordance with the Plans and Specifications and in
compliance with all applicable zoning ordinances, building and use regulations
and codes, and all other applicable laws and regulations. Neither Borrower nor
any Guarantor has received any notice, citation, or other communication from any
governmental authority relating to the Project that could reasonably be
anticipated to have an adverse effect on the Project or the construction
thereof, and there is no basis known to it for any such notices, citations or
other communications. To Borrower's knowledge, there have been no material
disputes among any contractors, subcontractors, suppliers, materialmen or other
similar parties relating to the Project.
5.9 LITIGATION, ETC. There are no judicial or administrative
actions, suits or proceedings (including without limitation any judgments,
garnishments or attachments) pending, or to the best of its knowledge,
threatened against, affecting or involving it involving a claim in excess of
$10,000 and there is no basis known to it for any such actions, suits,
proceedings or investigations.
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5.10 TAXES. Except as to taxes not yet due and payable, it has filed
all returns and reports that are now required to be filed by it in connection
with any federal, state, or local tax, duty or charge levied, assessed or
imposed upon it or its property, including unemployment, social security and
similar taxes; and all of such taxes have been either paid or adequate reserve
or other provision has been made therefor. It has filed for no extension of
time for the payment of any tax or for the filing of any tax return.
5.11 AUTHORITY. It has full power and authority to enter into the
transactions provided for in the Loan Documents. The Loan Documents to be
executed by it, when executed and delivered by it will constitute the legal,
valid and binding obligations of it enforceable in accordance with their
respective terms except as such enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws in effect
from time to time affecting the rights of creditors generally and except as such
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in law or in equity).
5.12 OTHER DEFAULTS. There does not now exist any default or
violation by it of or under any of the terms, conditions or obligations of: (i)
its Organizational Documents (ii) any indenture, mortgage, deed of trust,
franchise, permit, contract, agreement, or other instrument to which it is a
party or by which it is bound; or (iii) any law, regulation, ruling, order,
injunction, decree, condition or other requirement applicable to or imposed upon
it by any law or by any governmental authority, court or agency; and the
transactions contemplated by this Agreement and the Loan Documents will not
result in any such default or violation.
5.13 NO MECHANIC'S LIENS. Borrower has, as of the date hereof,
permitted no work on the Property which could give rise to a lien on the
Property, or if such work has commenced, has provided such waivers, indemnities
and other information as may be requested by the Title Company so the Title
Insurance Policy and the endorsements thereto may be issued without exceptions
for mechanics liens.
5.14 LICENSES, ETC. Borrower has obtained, or will obtain when
appropriate as construction progresses, any and all licenses, permits franchises
or other governmental authorizations necessary for the ownership of its
properties and the conduct of its business. Borrower possesses adequate
licenses, patents, patent applications, copyrights, trademarks, trademark
applications, and trade names to continue to conduct its business as heretofore
conducted by it, without any conflict with the rights of any other person or
entity.
5.15 REGULATION U. No part of the proceeds of the Loan will be used
to purchase or carry any margin stock (as such term is defined in Regulation U
of the Board of Governors of the Federal Reserve System).
5.16 CLOSING MEMO. The information contained in each of the
documents listed on the Closing Memo to be executed or delivered by it or
relating to it is complete and correct in all material respects.
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5.17 ACCURACY OF INFORMATION. Neither this Agreement, the Current
Financial Statements, nor any certificate, opinion or document furnished or to
be furnished to Lender by or on behalf of Borrower or any Guarantor pursuant to
or in connection with the transactions contemplated hereby contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading.
6. AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender
that as long as the Loan remains outstanding, it will:
6.1 COSTS AND EXPENSES. Pay all costs and expenses required to
satisfy the conditions of this Agreement, including but not limited to all taxes
and recording expenses, Lender's Attorneys' Fees, surveys, appraisals,
construction inspections, engineering studies, title insurance, title updates,
inspection fees, mortgage taxes, real estate taxes, document or intangibles tax,
and insurance policy fees.
6.2 EASEMENTS. Submit to Lender for Lender's approval, all easements,
covenants, restrictions or plats affecting the Property, accompanied by a
drawing or survey showing the exact location thereof prior to the execution
and/or filing thereof and comply with all restrictive covenants and easements
affecting the Property.
6.3 INSPECTIONS. Permit Lender, Inspector and their representatives
to enter upon the Project at all reasonable times to inspect the Property and
the Project and the construction thereof and all materials, fixtures and
articles used or to be used in the construction and to examine all detailed
plans, shop drawings, specifications and other records which relate to the
Project or the Property and will cooperate, and cause all contractors,
subcontractors and materialmen to cooperate, with Lender to enable it to perform
its functions hereunder.
6.4 CONSTRUCTION OF PROJECT. Cause the construction of the Project
to be promptly commenced and to be prosecuted with due diligence and continuity,
and will substantially complete the same by the Completion Date in all material
respects in accordance with the Plans and Specifications.
6.5 BROKERS. Indemnify and hold harmless Lender from and against all
claims of brokers and agents arising by reason of the execution of this
Agreement or the consummation of the transactions contemplated hereby, except
for claims arising solely from the actions of Lender.
6.6 CORRECTION OF DEFECTS. Upon demand of Lender, diligently correct
all defects in the Project and correct any departures from the Plans and
Specifications not approved by Lender, which results in an increase or decrease
in the cost of the Project in an amount in excess of $10,000.
6.7 BOOKS, INFORMATION AND ACCESS TO THE COLLATERAL. Deliver to
Lender such information regarding Borrower, the Project, or any Guarantor as
Lender may reasonably
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request and give representatives of Lender access thereto at all reasonable
times, including permission to examine, copy and make abstracts from any of such
books and records and deliver such other information as it may from time to time
reasonably request, and maintain proper books of account and other records and
enter therein complete and accurate entries and records of all if its
transactions. It will give Lender reasonable access to the Collateral for the
purposes of examining the Collateral and verifying its existence. It will make
available to Lender for examination copies of any reports, statements or returns
which Borrower may make to or file with any governmental department, bureau or
agency, federal or state. In addition, it will be available to Lender, or cause
its partners or officers or such partners' officers, as applicable, to be
available from time to time upon reasonable notice to discuss the status of the
Loan, its business and any statements, records or documents furnished or made
available to Lender in connection with this Agreement.
6.8 FINANCIAL STATEMENTS.
6.8.1 MONTHLY STATEMENTS. Furnish Lender within 30 days after
the end of each month internally prepared financial statements of Borrower with
respect to such month, which financial statements will: (i) be in reasonable
detail and in Proper Form; (ii) include a balance sheet as of the end of such
period, profit and loss and surplus statements for such period and a statement
of cash flows for such period; (iii) include prior year comparisons; and
(iv) be on a consolidating and consolidated basis for Borrower and for any
entity in which Borrower's financial information is consolidated in accordance
with generally accepted accounting principles. Following the Completion Date,
Borrower will furnish Lender with operating statements of the Project in
Proper Form within 30 days after the end of each month.
6.8.2 ANNUAL STATEMENTS. Furnish Lender within 90 days after
the end of each calendar year annual compiled financial statements of Borrower
and Kenwood Restaurant, Inc. which, for each such Person, will: (i) include a
balance sheet as of the end of such year, profit and loss and surplus statements
and a statement of cash flows for such year; and (ii) be in Proper Form.
6.8.3 FINANCIAL STATEMENTS OF GUARANTOR. Require each
Guarantor to furnish Lender a copy of his, her or its filed tax return
immediately after such filings are made with the Internal Revenue Service, and
provide Lender with a financial statement prepared by the Guarantor or the
Guarantor's accountant in form and substance acceptable to Lender.
6.9 TAXES. Pay and discharge when due all indebtedness and
all taxes, assessments, charges, levies and other liabilities imposed upon it,
its income, profits, property or business, except those which currently are
being contested in good faith by appropriate proceedings and for which it has
set aside adequate reserves or made other adequate provision with respect
thereto, but any such disputed item will be paid forthwith upon the commencement
of any proceeding for the foreclosure of any lien which may have attached with
respect thereto, unless Lender has received an opinion in form and substance and
from legal counsel acceptable
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to it that such proceeding is without merit. Borrower will furnish Lender with
each federal and state tax return filed for a calendar year within thirty (30)
days after filing.
6.10 OPERATIONS. Continue its business operations in substantially the
same manner as at present, except where such operations are rendered impossible
by a fire, strike or other events beyond its control; keep its real and
personal properties in good operating condition and repair; make all necessary
and proper repairs, renewals, replacements, additions and improvements thereto
and comply with the provisions of all leases to which it is a party or under
which it occupies or holds real or personal property so as to prevent any loss
or forfeiture thereof or thereunder.
6.11 INSURANCE. Comply with the insurance requirements of the Security
Documents.
6.12 COMPLIANCE WITH LAWS. Comply in all material respects with all
laws and regulations applicable to it and to the operation of its business,
including without limitation those relating to environmental matters, and do
all things necessary to maintain, renew and keep in full force and effect all
rights, permits, licenses, zoning certificates, clearances and franchises
(including but not limited to those relating to a "Hotel Mexico" restaurant)
necessary to enable Borrower to continue Borrower's business and construct and
operate the Project.
6.13 ENVIRONMENTAL VIOLATIONS. Immediately notify Lender of any
violation by Borrower of any rule, regulation, statute, ordinance, or law
relating to public health or the environment, and of complaints or
notifications received by Borrower with regard to any environmental or safety
and health rule, regulation, statute, ordinance or law.
6.14 ENVIRONMENTAL AUDIT AND OTHER ENVIRONMENTAL INFORMATION. Provide
copies of all environmental reports, audits, studies, data, results, and
findings obtained by Borrower from work conducted by it or any other person or
entity (including, but not by way of limitation, the United States
Environmental Protection Agency and any state Environmental Protection Agency
and their agents, representatives, and contractors) on the Property or property
adjacent thereto as soon as such reports, audits, studies, data, results, and
findings become available to it. If the submissions are considered inadequate
or insufficient in order for Lender to adequately consider the status of
environmental compliance by it or if the submissions are in error, then Lender
may require Borrower, at Borrower's sole expense, to engage an independent
engineering firm acceptable to Lender to conduct a complete environmental
report, study, finding or audit in as timely a fashion as is reasonably
possible. In addition, it will provide Lender with information related to
remedial action at the Property or adjacent to the Property as soon as such
information becomes available to Borrower (such information will include but
not be limited to a copy of the remedial investigation/feasibility study for
that property).
6.15 ACCOUNTS. Until final disbursement of the Loan, Borrower will
maintain a construction disbursement account relating to the Project at Lender.
Such account will be subject to Lender's normal and customary charges.
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6.16 NOTICE OF DEFAULT. Notify Lender in writing immediately after
it knows or has reason to know of the occurrence of an Event of Default.
6.17 AGREEMENTS. Comply with all the terms of, and take all actions
necessary to comply with and keep in full force and effect, the construction
contract with the general contractor on the Project and will not terminate or
modify any such agreement or release any party thereto without the prior written
consent of Lender. Borrower will promptly notify Lender of any claim of breach
of default by any party under any such agreement.
6.18 WARRANTIES. Upon request by Lender from time to time, promptly
deliver to Lender a true, correct and complete copy of each warranty, guaranty,
project manual, operating instructions, or similar document issued in connection
with the Project.
6.19 CHANGES. Immediately notify Lender of (a) any change in the
name under which Borrower conducts business, (b) any change in the location of
Borrower's principal place of business, or (c) the opening or closing of any
place from which Borrower conducts business.
6.20 SUBCONTRACTS. Provide to Lender, upon Lender's request, copies
of all major subcontracts in connection with the development and construction of
the Project and such financial information with respect to such subcontractors
under such subcontracts as Lender may reasonably require, all of which
subcontracts will be subject to Lender's reasonable approval.
6.21 LEASES. Comply with all requirements of the Mortgage and the
other Loan Documents with respect to the Leases.
6.22 PUBLICITY. Provided that Borrower is permitted to erect such
sign under the Restaurant Lease, permit Lender to erect one or more signs on the
Property indicating that Lender is financing the Project, and Borrower will
permit Lender to release articles for publicity purposes regarding Borrower and
the financing of the Project.
6.23 USE OF PROPERTY. Use the Property solely as a Hotel Mexico
Restaurant in accordance with the Restaurant Lease and the Franchise Agreement.
6.24 PERFORMANCE OF OBLIGATIONS. Perform each and every obligation
of the Restaurant Lease imposed on the Lessee thereunder. Borrower promptly
shall furnish Lender with any notice of default received from the Lessor under
the Restaurant Lease.
7. NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that as
long as the Loan remains outstanding, Borrower will not:
7.1 DEBT. Incur any Indebtedness other than: (i) the Loan and any
subsequent Indebtedness to Lender; (ii) open account obligations incurred in the
ordinary course of business having maturities of less than 90 days; and (iii)
except for the rental payable under the Restaurant Lease, rental and lease
payments for real or personal property whose aggregate
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annual rental payments would exceed $25,000.00 when added to Borrower's rental
or lease agreements existing on the date hereof.
7.2 LIENS. Incur, create, assume, become or be liable in any way, or
suffer to exist any mortgage, pledge, lien, charge or other encumbrance of any
nature whatsoever on the Collateral, other than Permitted Exceptions and
utility easements appropriate to the Project.
7.3 GUARANTEES. Guarantee, endorse or become contingently liable for
the obligations of any Person except in connection with the endorsement and
deposit of checks in the ordinary course of business for collection.
7.4 CHANGES. Make: (i) any changes to the Budget, and (ii) changes in
the Plans and Specifications or approve orders for extra work which individually
or in the aggregate modify the costs of the Project by more than $10,000,
without the prior written approval of Lender, and in accordance with, but
subject to, that certain Conditional Assignment of Construction Contract of
even date herewith, by and among Lender, Borrower and the general contractor
for the Project. Any request for change orders will be made on AIA Form G701
and copies submitted promptly to Lender.
7.5 RESTAURANT LEASE AND FRANCHISE AGREEMENT. Amend any of the terms
or provisions of either the Restaurant Lease or Franchise Agreement, or
terminate or permit the termination of, either such agreement, without the
prior written consent of Lender.
7.6 INVESTMENTS. Purchase or hold beneficially any stock, other
securities or evidences of indebtedness of, or make any investment or acquire
any interest whatsoever in, any other Person other than short term investments
of excess working capital invested in one or more of the following: (i)
investments in direct or guaranteed obligations of the United States, or any
agencies thereof; (ii) investments in certificates of deposit of banks or trust
companies organized under the laws of the United States or any jurisdiction
thereof, provided that such banks or trust companies are insured by the Federal
Deposit Insurance Corporation and have capital in excess of $25,000,000 and
(iii) investments made by Lender acting on behalf of Borrower.
7.7 MERGER, ACQUISITION OR SALE OF ASSETS. Without the Lender's
consent to be withheld in its sole discretion, merge or consolidate with any
other entity, acquire all or substantially all the assets of any Person, or
sell, lease or otherwise dispose of any of its assets, except for dispositions
in the ordinary course of business.
7.8 ADVANCES AND LOANS. Lend money, give credit or make advances
(other than advances not to exceed $10,000 in the aggregate and other
reasonable and ordinary advances to cover reasonable expenses of employees,
such as travel expenses) to any Person, including, without limitation,
officers, directors, partners, employees or affiliates of Borrower or any
Guarantor without the prior written consent of Lender.
7.9 RELATED ENTITIES. Enter into any partnership or joint venture
agreements.
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7.10 TRANSFER OF COLLATERAL. Transfer, or permit the transfer,
to another location of any of the Collateral or the books and records related
to any of the Collateral; provided, however, that it may transfer the
Collateral or the books and records related thereto to another location with
the prior written consent of Lender and if Borrower has provided to Lender
prior to such transfer an opinion addressed to Lender in form and substance and
written by counsel acceptable to Lender to the effect that Lender's perfected
security interest in the Collateral will not be affected by such move or if it
will be affected, setting forth the steps necessary to continue Lender's
perfected security interest together with the commencement of such steps by
Borrower at Borrower's expense.
7.11 CONVEYANCES. Voluntarily or involuntarily mortgage, sell,
convey, pledge, grant a security interest in, execute an installment sale
contract, or otherwise dispose of, further encumber or suffer the encumbrance
of, whether by operation of law or otherwise, any or all of its interest in the
Collateral, or any part thereof, without the prior written consent of Lender.
The occurrence of any of the following events (each, a "Transfer") without
Lender's prior written consent will be deemed a violation of the foregoing
covenant: (i) the transfer, conveyance, contract for sale, assignment or pledge
of any partnership interest in Borrower, (ii) the failure of Kenwood
Restaurant, Inc. at any time to remain the sole general partner of Borrower, or
(iii) the dissolution of Borrower or any Guarantor.
7.12 SALE AND LEASEBACK. Directly or indirectly enter into any
arrangement to sell or transfer all or any part of its fixed assets then owned
by it and thereupon or within one year thereafter rent or lease the assets so
sold or transferred.
7.13 POST-CLOSING MATTERS. Fail to deliver to Lender in Proper
Form the documents, if any, noted as post-closing items on the Closing Memo on
or before the date specified in the Closing Memo.
7.14 LINE OF BUSINESS. Enter into any lines or areas of
business substantially different from the business or activities in which
Borrower is presently engaged.
7.15 WAIVERS. Waive any right or rights of substantial value
which, singly or in the aggregate, is or are material to its condition
(financial or otherwise), properties or business.
7.16 ASSIGNMENT. Assign the Restaurant Lease, or sublet any
portion of the Property, without the express written consent of Lender, which
consent Lender may withhold in its sole discretion.
8. DEFAULT.
8.1 EVENTS OF DEFAULT BY BORROWER. The occurrence of any one or
more of the following with respect to Borrower will constitute an "Event of
Default" as such term is used herein:
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8.1.1 The non-payment when due, whether by acceleration or
otherwise of any principal, interest, late charges on the Note or any other
amount due Lender under the Loan Documents.
8.1.2 The default in the due observance of any other covenant or
agreement to be kept or performed by it under the terms of this Agreement or
any of the other Loan Documents and the failure or inability of it to cure such
default within 30 days of the occurrence thereof; provided that such 30 day
grace period will not apply to: (i) any default which in Lender's good faith
determination is incapable of cure, (ii) any default that has previously
occurred, (iii) any default in any negative covenants or (iv) any failure to
maintain insurance or permit inspection of the Collateral or its books and
records.
8.1.3 Any representation or warranty made by it in this
Agreement, in any of the other Loan Documents or in any report, certificate,
opinion, financial statement or other document furnished in connection with the
Obligations is false or erroneous in any material respect or any material
breach thereof has been committed.
8.1.4 Except as provided in Sections 8.1.1, 8.1.2, and 8.1.3,
the default by it in the due observance of any covenant, negative covenant or
agreement to be kept or performed by it under the terms of this Agreement, the
Loan Documents or any document now or in the future executed in connection with
any of the Obligations and the lapse of any applicable cure period provided
therein with respect to such default, or, if so defined therein, the occurrence
of any Event of Default or Default (as such terms are defined therein).
8.1.5 The occurrence of any default or Event of Default (as
defined therein) under any agreement or instrument evidencing, guaranteeing, or
otherwise relating to any loan or extension of credit by Lender to Hotel
Mexico, Inc.
8.1.6 The termination or cancellation for any reason of the
Restaurant Lease.
8.1.7 It or any Guarantor that is not an individual: (i)
dissolves or is the subject of any dissolution, a winding up or liquidation;
(ii) makes a general assignment for the benefit of creditors; or (iii) files or
has filed against it a petition in bankruptcy, for a reorganization or an
arrangement, or for a receiver, trustee or similar creditors' representative
for its property or assets or any part thereof, or any other proceeding under
any federal or state insolvency law, and if filed against it, the same has not
been dismissed or discharged within 60 days thereof.
8.1.8 The commencement of any foreclosure proceedings,
proceedings in aid of execution, attachment actions, levies against, or the
filing by any taxing authority of a lien against it or against any of the
Collateral, except those liens being diligently contested in good faith which
in the aggregate do not exceed $25,000.
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8.1.9 A discontinuance or abandonment of the construction of
the Project, or any occurrence resulting in a delay in the construction of the
Project so that the same may not, in Lender's sole judgment, be completed on or
before the Completion Date.
8.1.10 The disapproval of Lender at any time of any
construction work because of the failure of such work to comply with the Plans
and Specifications, as approved by Lender, applicable zoning or building
codes,or the contracts or subcontracts for such work or the failure of such
work to be merchantable or of such quality as is normally acceptable in the
construction trades and the failure of Borrower to cause the same to be
corrected to the satisfaction of Lender within the earlier of: (i) thirty (30)
days after written notice from Lender or (ii) the Completion Date.
8.1.11 The failure of Borrower or any Guarantor by payment,
bond or otherwise to satisfy, remove or cause the Title Company to endorse the
Title Insurance Policy to affirmatively insure over, within thirty (30) days
after the date of filing thereof, any lien or claim of lien filed against the
Property for the performance of work, the supplying of materials or labor, the
performance of services, or the payment of local, state or federal taxes.
8.1.12 The bankruptcy or insolvency of any general contractor
or subcontractor and failure of Borrower to procure a contract or subcontract
in Proper Form with a new substitute contractor or subcontractor so that the
Project may not, in Lender's sole judgment, be completed on or before the
Completion Date.
8.1.13 Unless in the opinion of Lender that the same is
adequately insured or bonded, the entry of a final judgment for the payment of
money involving more than $25,000 against it and the failure by it to discharge
the same, or cause it to be discharged, within 10 days from the date of the
order, decree or process under which or pursuant to which such judgment was
entered, or to secure a stay of execution pending appeal of such judgment; the
entry of one or more final monetary or non-monetary judgments or order which,
singly or in the aggregate, does or could reasonably be expected to: (i) cause
a material adverse change in the value of the Collateral or its condition
(financial or otherwise), operations, properties or prospects, (ii) have a
material adverse effect on its ability to perform its obligations under this
Agreement or the Loan Documents, or (iii) have a material adverse effect on the
rights and remedies of Lender under this Agreement, the Note or any Loan
Document.
8.1.14 Lender in its sole discretion, determines in good faith
that a material adverse change has occurred in its financial condition.
8.1.15 The modification or termination of the Lease, Franchise
Agreement, or construction contract for the Project, without Lender's prior
written consent.
8.1.16 The validity or effectiveness of any Security Document
or its transfer, grant, pledge, mortgage or assignment by the party executing
it in favor of Lender is impaired; any party to a Security Document asserts
that any Security Document is not a legal,
-22-
23
valid and binding obligation of it enforceable in accordance with its terms;
the security interest or lien purporting to be created by any of the Security
Documents ceases to be or is asserted by any party to any Security Document
(other than Lender) not to be a valid, perfected lien subject to no liens other
than liens not prohibited by this Agreement or any Security Document; or any
Security Document is amended, subordinated, terminated or discharged, or any
person is released from any of its covenants or obligations except to the
extent that Lender expressly consents in writing thereto.
8.1.17 The death of any Guarantor who is an individual.
8.1.18 A default with respect to any evidence of Indebtedness
in excess of $25,000 by it (other than to Lender pursuant to this Agreement),
if the effect of such default is to accelerate the maturity of such
Indebtedness or to permit the holder thereof to cause such Indebtedness to
become due prior to the stated maturity thereof, or if any Indebtedness of it
in excess of $25,000 (other than to Lender pursuant to this Agreement) is not
paid when due and payable, whether at the due date thereof or a date fixed for
prepayment or otherwise (after the expiration of any applicable grace period).
8.1.19 The revocation of any permit or license required in the
operation of the Hotel Mexico Restaurant on the Property.
8.2 LENDER'S REMEDIES IN THE EVENT OF DEFAULT. Upon the
occurrence of any Event of Default, Lender, in addition to all remedies
conferred upon Lender by law or equity and by the terms of the Loan Documents,
may, in its sole discretion, pursue any one or more of the following remedies
concurrently or successively, it being the intent hereof that none of such
remedies will be to the exclusion of any other:
8.2.1 Take possession of the Property and complete the
construction and equipping of the Project and do anything in Lender's sole
judgment to fulfill the obligations of Borrower hereunder, any expense incurred
by Lender being deemed to be part of the Obligations of Borrower pursuant to the
Loan, including the right to procure performance of existing contracts or let
contracts with the same contractors or others. Without restricting the
generality of the foregoing and for purposes aforesaid, Borrower hereby appoints
and constitutes Lender its lawful attorney-in-fact with full power of
substitution in the premises to complete construction and equipping of the
Project in the name of Borrower; to use unadvanced funds remaining under the
Loan or which may be reserved or escrowed for any purpose hereunder to complete
the Project; to make changes in the Plans and Specifications necessary or
desirable to complete the Project; to retain or employ new general contractors,
subcontractors, architects and inspectors as will be required for such purposes;
to pay, settle, or compromise all existing bills and claims which may become a
lien on the Property or as may be necessary or desirable for the completion of
the construction of the Project or for the clearance of title; to negotiate,
enter into, execute, deliver and collect rents under any lease or leases for all
or any portion of the Project or the Property; to provide for and cause the
completion of any tenant work tenant furnishings and/or tenant improvements for
all or any portion of the Project or the Property; and
-23-
24
to do any and every act which Borrower might do in its own behalf to prosecute
and defend all actions or proceedings in connection with the Project or the
Property; to take such action and require such performance as Lender deems
necessary under any of the bonds which may be furnished hereunder and to make
settlements and compromises with any surety or sureties thereunder, and in
connection therewith, to execute instruments of release and satisfaction; it
being understood and agreed that this power of attorney will be a power coupled
with an interest and cannot be revoked;
8.2.2 Withhold further disbursement of the proceeds of the Loan;
8.2.3 Declare the entire indebtedness evidenced by the Note,
including all payments for taxes, assessments, insurance premiums, liens, costs,
expenses and Attorneys' Fees herein specified, without demand or notice of any
kind (which are hereby expressly waived) to be due and payable at once and, in
that event, such indebtedness and the Obligations will become immediately due
and payable, provided, however that upon occurrence of any of the events
described in Section 8.1.5, such acceleration will occur automatically and
without any notice or other action on the part of Lender; and to
8.2.4 Offset and apply to all or any part of the Loan, all money,
credits and other property of any nature whatsoever of Borrower now or at any
time hereafter in the possession, in transit to or from, under the control or
custody of, or on deposit with Lender (whether held by Borrower individually or
jointly with another party).
8.2.5 Request the appointment of a receiver of the Collateral.
Such appointment may be made without notice, and without regard to (i) the
solvency or insolvency, at the time of application for such receiver, of the
person or persons, if any, liable for the payment of the Obligations; and (ii)
the value of the Collateral at such time. Such receiver will have the power to
take possession, control and care of the Collateral and to collect all accounts
resulting therefrom. Notwithstanding the appointment of any receiver, trustee,
or other custodian, Lender will be entitled to the possession and control of any
cash, or other instruments at the time held by, or payable or deliverable under
the terms of this Loan Agreement or any Security Documents to Lender.
8.3 Advances to Cure Default. In the event that Borrower fails to
perform any of Borrower's convenants or agreements under this Agreement, Lender
may, but will not be required to, perform any or all of such covenants and
agreements after ten (10) days written notice to Borrower (unless in Lender's
judgment the sending of a ten (10) day notice may impair the security of the
Loan Documents or the Project or the Property), and any amounts expended by
Lender in so doing will constitute additional indebtedness under this Agreement
and under the Mortgage and will be repaid as provided therein.
8.4 Marketing of Project. In the event that there is an occurrence
of an Event of Default, Lender will be entitled to publicize the Project for
sale and to furnish rent rolls, operating statement and all other information
pertaining to the Project in the possession
-24-
25
of Lender to prospective purchasers and their lenders in anticipation of, or
concurrent with, Lender's enforcement of its rights and remedies under the Loan
Documents and/or acquisition of the Project by foreclosure, deed in lieu of
foreclosure or otherwise and will be entitled to engage a real estate broker
for such purpose. All such marketing activities and brokerage arrangements
under in connection with such marketing of the Project will be the sole
expense of Borrower.
9. GENERAL COVENANTS.
9.1 INDEMNITY. Borrower will indemnify, defend and hold harmless,
Lender, its directors, officers, counsel and employees, from and against all
claims, demands, liabilities, judgements, losses, damages, costs and expenses,
joint or several (including all accounting fees and Attorneys' Fees reasonably
incurred), that Lender or any such indemnified party may incur arising under or
by reason of this Agreement or any act hereunder or with respect hereto or
thereto including but not limited to any of the foregoing relating to any act,
mistake or failure to act in perfecting, maintaining, protecting or realizing
on any collateral or lien thereon except the willful misconduct or gross
negligence of such indemnified party. Without limiting the generality of the
foregoing, Borrower agrees that if, after receipt by Lender of any payment of
all or any part of the Obligations, demand is made at any time upon Lender for
the repayment or recovery of any amount or amounts received by it in payment or
on account of the Obligations and Lender repays all or any part of such amount
or amounts by reason of any judgement, decree or order of any court or
administrative body, or by reason of any settlement or compromise of any such
demand, this Agreement will continue in full force and effect and Borrower will
be liable, and will indemnify, defend and hold harmless Lender for the amount
or amounts so repaid. The provisions of this Section will be and remain
effective notwithstanding any contrary action which may have been taken by
Borrower in reliance upon such payment, and any such contrary action so taken
will be without prejudice to Lender's rights under this Agreement and will be
deemed to have been conditioned upon such payment having become final and
irrevocable. The provisions of this Section will survive the expiration or
termination of this Agreement or the release of the Security Documents.
9.2 CONTINUING AGREEMENT. This Agreement is and is intended to be a
continuing agreement and will remain in full force and effect until the Loan is
finally and irrevocably paid in full and this Agreement is terminated by a
writing signed by Lender specifically terminating this Agreement.
9.3 NO THIRD PARTY BENEFICIARIES. Nothing express or implied herein
is intended or will be construed to confer upon or give any Person, other than
the parties hereto, any right or remedy hereunder or by reason hereof.
9.4 NO PARTNERSHIP OR JOINT VENTURE. Nothing contained herein or in
any of the agreements or transactions contemplated hereby is intended or will
be construed to create any relationship other than as expressly stated herein
or therein and will not create any joint venture, partnership or other
relationship.
-25-
26
9.5 WAIVER. No delay or omission on the part of Lender to exercise any
right or power arising from any Event of Default will impair any such right or
power or be considered a waiver of any such right or power or a waiver of any
such Event of Default or an acquiescence therein nor will the action or
nonaction of Lender in case of such Event of Default impair any right or power
arising as a result thereof or affect any subsequent default or any other
default of the same or a different nature. No disbursement of the Loan
hereunder will constitute a waiver of any of the conditions to Lender's
obligation to make further disbursements; nor, in the event that Borrower is
unable to satisfy any such condition, will any such disbursement have the
effect of precluding Lender from thereafter declaring such inability to be an
Event of Default.
9.6 NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder will be in writing and will
be conclusively deemed to have been received by a party hereto and to be
effective if delivered personally to such party, or sent by telex, telecopy
(followed by written confirmation) or other telegraphic means, or by overnight
courier service, or by certified or registered mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or to
such other address as any party may give to the other in writing for such
purpose:
To Lender: PNC Bank, Ohio, National Association
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Commercial Real Estate
To Borrower: Kenwood Restaurant Limited Partnership
0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xx. Xxxxxxx X. Xxxx
All such communications, if personally delivered, will be conclusively deemed
to have been received by a party hereto and to be effective when so delivered,
or if sent by telex, telecopy or telegraphic means, on the day on which
transmitted, or if sent by overnight courier service, on the day after deposit
thereof with such service, or if sent by certified or registered mail, on the
third business day after the day on which deposited in the mail.
9.7 SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of Borrower and Lender and their respective successors and
assigns, provided, however, that Borrower may not assign this Agreement in
whole or in part without the prior written consent of Lender and Lender at any
time may assign this Agreement in whole or in part.
9.8 MODIFICATIONS. This Agreement, the Note and the Loan Documents, and
the documents listed on the Closing Memo, constitute the entire agreement of
the parties and supersede all prior agreements and understandings regarding the
subject matter of this
-26-
27
Agreement, including but not limited to any proposal or commitment letters. No
modification or waiver of any provision of this Agreement, the Note, any of the
Loan Documents or any of the documents listed on the Closing Memo, nor consent
to any departure by Borrower therefrom, will be established by conduct, custom
or course of dealing; and no modification, waiver or consent will in any event
be effective unless the same is in writing and specifically refers to this
Agreement, and then such waiver or consent will be effective only in the
specific instance and for the purpose for which given. No notice to or demand on
Borrower in any case will entitle Borrower to any other or further notice or
demand in the same, similar or other circumstance.
9.9 REMEDIES CUMULATIVE. No single or partial exercise of any right or
remedy by Lender will preclude any other or further exercise thereof or the
exercise of any other right or remedy. All remedies hereunder and in any
instrument or document evidencing, securing, guaranteeing or relating to the
Loan or now or hereafter existing at law or in equity or by statute are
cumulative and none of them will be exclusive of the others or any other remedy.
All such rights and remedies may be exercised separately, successively,
concurrently, independently or cumulatively from time to time and as often and
in such order as Lender may deem appropriate.
9.10 EXTENT OF LENDER'S REVIEW. The review and approval of the Plans
and Specifications by Lender or any of its professionals will not constitute a
representation or warranty as to the engineering or architectural design in the
preparation of the Plans and Specifications, the quality of materials or
workmanship covered by the Plans and Specifications or the Project's compliance
with applicable federal, state or local laws and policies. It will be the sole
responsibility of Borrower and its professionals to confirm all such matters
and Borrower will not be entitled to rely on Lender or its professionals for
such purpose.
9.11 ILLEGALITY. If fulfillment of any provision hereof or any
transaction related hereto or of any provision of the Note or the Loan
Documents, at the time performance of such provision is due, involves
transcending the limit of validity prescribed by law, then ipso facto, the
obligation to be fulfilled will be reduced to the limit of such validity; and
if any clause or provisions herein contained (other than the provisions hereof
pertaining to repayment of the Obligations) operates or would prospectively
operate to invalidate this Agreement in whole or in part, then such clause or
provision only will be void, as though not herein contained, and the remainder
of this Agreement will remain operative and in full force and effect; and if
such provision pertains to repayment of the Obligations, then, at the option of
Lender, all of the Obligations of Borrower to Lender will become immediately
due and payable.
9.12 GENDER, ETC. Whenever used herein, the singular number will
include the plural, the plural the singular and the use of the masculine,
feminine or neuter gender will include all genders.
9.13 HEADINGS. The headings in this Agreement are for convenience only
and will not limit or otherwise affect any of the terms hereof.
-27-
28
9.14 TIME. Time is of the essence in the performance of this
Agreement.
9.15 GOVERNING LAW AND JURISDICTION; NO JURY TRIAL. THIS
AGREEMENT WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE PARTIES
HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OHIO, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES, AND BORROWER HEREBY AGREES TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN XXXXXXXX COUNTY, OHIO
AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY CERTIFIED MAIL DIRECTED TO
BORROWER AT BORROWER'S ADDRESS SET FORTH HEREIN FOR NOTICES AND SERVICE SO MADE
WILL BE DEEMED TO BE COMPLETED FIVE (5) BUSINESS DAYS AFTER THE SAME HAS BEEN
DEPOSITED IN U.S. MAILS, POSTAGE PREPAID; PROVIDED THAT NOTHING CONTAINED HEREIN
WILL PREVENT LENDER FROM BRINGING ANY ACTION OR EXERCISING ANY RIGHTS AGAINST
ANY SECURITY OR AGAINST BORROWER INDIVIDUALLY, OR AGAINST ANY PROPERTY OF
BORROWER, WITHIN ANY OTHER STATE OR NATION. BORROWER WAIVES ANY OBJECTION BASED
ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE IN ANY ACTION INSTITUTED
HEREUNDER. BORROWER AND LENDER EACH WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY DOCUMENTS EVIDENCING ANY OF
THE OBLIGATIONS, OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH AGREEMENTS.
Executed on October 9, 1996.
BORROWER:
KENWOOD RESTAURANT LIMITED PARTNERSHIP
By: Kenwood Restaurant, Inc., its General Partner
By: Xxxxxxx X. Xxxx
---------------------
Xxxxxxx X. Xxxx
President
-28-
29
LENDER:
PNC BANK, OHIO, NATIONAL ASSOCIATION
By: Xxxxx Gaskic
---------------------
Print Name: Xxxxx Gaskic
--------------
Title: Loan Officer
------------------
-29-
30
CONSTRUCTION INC. CONCEPTUAL ESTIMATE (CONFIDENTIAL) PG 1 OF 3
--------------------------------------------------------------------------------------------------------------------------------
HOTEL MEXICO DURATION GROSS BLDG AREA MAY 18,1995
-------- --------------- -----------
SYCAMORE PLAZA START DATE Bsmt. AREA* 4,015 SF XXX# X0000
XXXXXXX XXXX COMPL DATE 1st FL AREA* 7,729 SF File: HTL MEX WC2
--------------------
6.00% SALES TAX TOTAL MOCNS 7.5 2nd NET AREA 4,767 SF SITE PERIM
------ ---- -----
Y BLDRS RISK INSUR (Y OR N) TOTAL WEEKS TOTAL 16,511 SF ACRES LF*
N PERFORMANCE BOND (Y OR N OR ALT)
------------------------------------------------------------------------------------------------------------------------------------
Mat Lab Sub
Cs ITEM DESCRIPTION QTY U @ @ @ MATL LABOR SUB TOTAL COST/SF
------------------------------------------------------------------------------------------------------------------------------------
2100 Site Demolition 1 LS 1600 1,600 1,600 0.10
------------------------------------------------------------------------------------------------------------------------------------
2150 Selective Demolition N
------------------------------------------------------------------------------------------------------------------------------------
2210 Site Grading W/2100 2000
------------------------------------------------------------------------------------------------------------------------------------
2220 Bldg Excavation & BF 1 3100 6470 N 8188 6,858 8,188 15,046 0.91
------------------------------------------------------------------------------------------------------------------------------------
2220 domy Fdtns 1 4200 N
------------------------------------------------------------------------------------------------------------------------------------
2220 do Basement 1 WBA 8130 7326 8349 8,618 7,326 8,349 24,293 1.47
------------------------------------------------------------------------------------------------------------------------------------
2220 do Xxxxx Xxxxxx 0 XXX 00000 11,149 11,149 0.68
------------------------------------------------------------------------------------------------------------------------------------
0000 X-X-X Xxxx Xxxx Xxx 0 0000 0000 N 499 1,822 499 2,321 0.14
------------------------------------------------------------------------------------------------------------------------------------
2221 do- Site Walks 1 ORIG 522 171 553 171 724 0.04
------------------------------------------------------------------------------------------------------------------------------------
2240 Soil Stabilization N
------------------------------------------------------------------------------------------------------------------------------------
2250 Termite Control 1 3300 1391 1,391 1,391 0.08
------------------------------------------------------------------------------------------------------------------------------------
2350 Drift Caissons (Incl. Casing) 5 DAYS 1500 7,500 7,500 0.45
------------------------------------------------------------------------------------------------------------------------------------
2505 Foundation Drainage 1 3100 636 576 674 576 1,250 0.08
------------------------------------------------------------------------------------------------------------------------------------
2505 do Basement 1 WBA 636 1440 674 1,440 2,114 0.13
------------------------------------------------------------------------------------------------------------------------------------
2510 Storm Sewer 1 LS 1000 1,000 1,000 0.06
------------------------------------------------------------------------------------------------------------------------------------
2520 Sanitary Sewer 1 LS 2500 2,500 2,500 0.15
------------------------------------------------------------------------------------------------------------------------------------
2550 Water Serv. - Domestic 1 LS 1500 1,500 1,500 0.09
------------------------------------------------------------------------------------------------------------------------------------
2560 Fire Line 1 LS 3000 3,000 3,000 0.18
------------------------------------------------------------------------------------------------------------------------------------
2580 Gas Service 1 LS 1000 1,000 1,000 0.06
------------------------------------------------------------------------------------------------------------------------------------
2600 Asphalt Paving (Patch) 600 SY 18 10,800 10,800 0.65
------------------------------------------------------------------------------------------------------------------------------------
2650 Site Concrete B/O ORIG 3527 5586
------------------------------------------------------------------------------------------------------------------------------------
2700 Site Improvements N
------------------------------------------------------------------------------------------------------------------------------------
2710 Fencers & Gates N
------------------------------------------------------------------------------------------------------------------------------------
2750 Lawn Irrigation System N
------------------------------------------------------------------------------------------------------------------------------------
2800 Landscaping B/O 2000
------------------------------------------------------------------------------------------------------------------------------------
3100 Bldg Conc-Foundtns 1 3100 19471 24624 20,638 24,624 45,263 2.74
------------------------------------------------------------------------------------------------------------------------------------
3100 do Basement 1 WB3 15492 42469 16,422 42,469 58,891 3.57
------------------------------------------------------------------------------------------------------------------------------------
3150 Caissons - Concrete 60 CY 45.5 66.6667 2,894 4,000 6,894 0.42
------------------------------------------------------------------------------------------------------------------------------------
3150 Caissons - Xxxxx 4 TON 500 W/Abov 2,120 2,120 0.13
------------------------------------------------------------------------------------------------------------------------------------
3100 Conc Ftgs a Msy Fdtns 1 4200 N
------------------------------------------------------------------------------------------------------------------------------------
3300 Bldg Conc-Flatwork SOG 1 3300 7973 N 6527 8,451 6,527 14,978 0.91
------------------------------------------------------------------------------------------------------------------------------------
3300 do Basement 1 WB3 3868 3325 4,100 3,325 7,425 0.45
------------------------------------------------------------------------------------------------------------------------------------
3300 do- SOD - 2nd Floor 1 3300 4917 5078 767 5,212 5,078 767 11,057 0.67
------------------------------------------------------------------------------------------------------------------------------------
3300 do- SOD - Roof 1 3300 4069 3340 627 4,313 3,340 627 8,280 0.50
------------------------------------------------------------------------------------------------------------------------------------
3300 Seal Conc Floors 1 5000
------------------------------------------------------------------------------------------------------------------------------------
3400 Precast Concrete N
------------------------------------------------------------------------------------------------------------------------------------
3500 Cementious Decks N
------------------------------------------------------------------------------------------------------------------------------------
4200 Masonry 1 W42 44412 44,412 44,412 2.69
------------------------------------------------------------------------------------------------------------------------------------
5100 Structural Steel 1 5000 73984 N 19917 78,423 19,917 98,340 5.96
------------------------------------------------------------------------------------------------------------------------------------
5100 do Basement 1 ORIG 4802 1867 5,090 1,867 6,957 0.42
------------------------------------------------------------------------------------------------------------------------------------
5200 Steel Joists 1 5000 12715 N 4979 13,478 4,979 18,457 1.12
------------------------------------------------------------------------------------------------------------------------------------
5200 do Basement 1 ORIG 5107 1867 5,413 1,867 7,280 0.44
------------------------------------------------------------------------------------------------------------------------------------
5300 Metal Roof Deck 1 5000 8972 N 2858 9,510 2,858 12,368 0.75
------------------------------------------------------------------------------------------------------------------------------------
5350 Metal Form Deck W/ABOV
------------------------------------------------------------------------------------------------------------------------------------
5350 do Over Basement 1 ORIG 1995 598 2,115 598 2,713 0.16
------------------------------------------------------------------------------------------------------------------------------------
5400 Lt Ga Metal Framing W/6100
------------------------------------------------------------------------------------------------------------------------------------
5500 Misc Steel Fabrications N
------------------------------------------------------------------------------------------------------------------------------------
5510 Metal Stairs & Railings 26 RIS 150 3,900 3,900 0.24
------------------------------------------------------------------------------------------------------------------------------------
5510 do Basement 20 RIS 150 3,000 3,000 0.18
------------------------------------------------------------------------------------------------------------------------------------
5515 Roof Ladder N
------------------------------------------------------------------------------------------------------------------------------------
5800 Guard Rail N
------------------------------------------------------------------------------------------------------------------------------------
6100 R. Carpentry-Exter Walls 1 6100 27228 15810 28,862 15,810 44,672 2.71
------------------------------------------------------------------------------------------------------------------------------------
6100 do Eurred Walls 1 6100 1630.8 1667 1,729 1,667 3,396 0.21
------------------------------------------------------------------------------------------------------------------------------------
31
CONSTRUCTION INC. CONCEPTUAL ESTIMATE (CONFIDENTIAL) PG 2 OF 3
--------------------------------------------------------------------------------------------------------------------------------
HOTEL MEXICO DURATION GROSS BLDG AREA MAY 18,1995
SYCAMORE PLAZA -------- --------------- -----------
KENWOOD MALL START DATE Bsmt. AREA* 4,015 XX XXX # X0000
COMPL DATE 1st FL AREA* 7,728 SF File: HTL MEX WC2
TOTAL MONS -----------------
TOTAL WEEKS 7.5 2nd NET AREA* 4,767 SF SITE PERIM
6.00% SALES TAX ------ ---- -----
Y BLDRS RISK INSUR (Y OR N) TOTAL* 16,511 SF ACRES LF*
N PERFORMANCE BOND (Y OR N OR ALT)
--------------------------------------------------------------------------------------------------------------------------------
Mat Lab Sub
C# ITEM DESCRIPTION QTY U @ @ @ MATL LABOR SUB TOTAL COST/SF
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6100 do- Inter Partns 1 6100 15163.2 8254 16,073 8,254 24,327 1.47
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6100 do- Roof Frmg 1 6100 1918.8 1676 2,034 1,676 3,710 0.22
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6200 FRP Panel/ Kitchen 3000 SF 1.5 0.75 4,770 2,250 7,020 0.43
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6190 Wood Trusses 1 6100
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6200 Finish Carpentry 1 6400
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6200 PLAM Wdw Stools 1 6400 1297 459 1,375 459 1,834 0.11
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
6400 Prefab Cabinets + Shlvg 1 6400 1674 374 1,774 374 2,148 0.13
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7100 Waterproofing N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7150 Dampproofing 1 7000 1250 1,250 1,250 0.08
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7150 do Basement 1 OMG 6264 6,264 6,244 0.30
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7210 Insulation - Batt 1 7000 8100 8,100 8,100 0.40
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7220 Sound - Batt 1 7000 628 628 628 0.04
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7240 EIFS/ Dryvtt 1 7000 39537 39,537 39,537 2.39
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7250 Perim + U/slab Insul 1 7000 684 306 725 306 1,031 0.06
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7300 Roof Shingles + Sht Met 1 7000
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7400 Preform Roof + Siding W/Belo
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7600 Singl Ply Roof, SM+Acc 1 7000 65700 65,700 65,700 3.96
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7630 Gutters & DS W/Abov
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7800 Roof Accessories N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7810 Skylights N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7830 Roof Hatches N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
7900 Sealants + Caulking 1 7000 19 43 20 43 63 0.00
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8100 H.M.Doors + Frames 1 8000 893 238 947 236 1,185 0.07
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8200 Wood Doors 1 8000 477 216 506 216 722 0.04
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8300 Special Doors/Entry Doors B/RAM EA 1600 288
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8360 Overhead Doors N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8400 Entrances + Storefronts B/RAM 8000 900
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8500 Metal / Alum Windows N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8600 Wood Windows N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8700 Finish Hardware 1 8000 2134 622 2,262 622 2,884 0.17
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8710 ADA Requirements W/ABOV
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
8800 Glass & Glazing 1 8000 57307 57,307 57,307 3.47
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9250 Drywall 1 9000 26950 26,950 26,950 1.63
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9260 Metal Studs - Exter Walls W/6100 6100 27228 15810
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9280 do- Inter Partns W/6100 6100 15163.2 8254
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9300 Tile- Ceramic, Quarry 1 9000 40616 40,616 40,616 2.46
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9300 Marble & Slate Tile N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9600 Acoustical Ceilings 1 9000 6306 6,306 6,306 0.38
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9650 Vinyl Tile W/9680 9000
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9660 Vinyl Base 1 9000 1171 1,171 1,171 0.07
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9660 Resil Sheet Flooring N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9680 Carpet 1 9000 14103 14,103 14,103 0.85
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9700 Special Flooring N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9800 Special Coatings N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
9900 Painting 1 9000 16804 16,804 16,804 1.02
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10160 Toilet Partitions 1 10000 2400 2,400 2,400 0.15
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10200 Louvers + Vents N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10350 Flagpoles N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10390 Fire Exting + Cabinets 1 10000 657 696 696 0.04
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10400 Signage - Interior N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10420 Signage - Exterior N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10500 Lockers N
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
10600 Toilet Room Access 1 10000 1172 298 1,242 298 1,540 0.09
------ ---------------------------- --------- -------- --------- ---------- -------- --------- ------- ------- -------- ------------
32
CONSTRUCTION INC. CONCEPTUAL ESTIMATE (CONFIDENTIAL) PG 3 OF 3
--------------------------------------------------------------------------------------------------------------------------------
HOTEL MEXICO DURATION GROSS BLDG AREA MAY 18,1995
-------- --------------- -----------
SYCAMORE PLAZA START DATE Bsmt. AREA* 4,015 SF XXX# X0000
XXXXXXX XXXX COMPL DATE 1st FL AREA* 7,728 SF File: HTL MEX WC2
--------------------
6.00% SALES TAX TOTAL MONS 7.5 2nd NET AREA 4,767 SF SITE PERIM
------ ---- -----
Y BLDRS RISK INSUR (Y OR N) TOTAL WEEKS TOTAL 16,511 SF ACRES LF*
N PERFORMANCE BOND (Y OR N OR ALT)
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Mat Lab Sub
Cs ITEM DESCRIPTION QTY U @ @ @ MATL LABOR SUB TOTAL COST/SF
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11000 Equipment N
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11050 Install Owner Furn Equip N
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11630 Laundry Equip N
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11900 Appliances N
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12000 Furnishings N
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12500 Window Treatment N
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12570 Rugs + Mats N
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14000 Conveying Systems N
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15400 Plumbing 1.6 15400 25500 40,800 40,800 2.47
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15450 Limited Sprinkler Sys N
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15500 Fire Sprinkler System 16511 SF 1.6625 27,450 27,450 1.66
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15600 Gas Piping (House) W/BELO
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15800 H.V.A.C. 1 15800 156580 156,580 156,580 9.48
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15050 Electrical Service W/BELO
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16100 Electrical Work 1 16000 102648 102,648 102,648 6.22
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16100 do Basement 1 CRIG 5672 5,672 5,672 0.34
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16720 Fire Alarm System W/16100
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16730 Detection System N
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16750 Telephone System N
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16770 PA System N
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16780 Television System N
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16790 Telecomm Sys N
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SUB-TOTAL SITE & BLDG. ESTIM. COST= 260,394 49,973 884,670 1,155,037 69.96
PROOF= 1,155,037 69.96
1000 GELN COND 57,021 3.45
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1000 A/E +CIVIL A/E FEES B/O
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1,212,058 TOTAL ESTIMATED COST 1,212,058 73.41
OH+P 108,000 6.54
228 CALANDAR DAYS 1,320,058 SUB-TOTAL 1,328,058 79.95
1000 Insurance & Bond BLDRS RISK= BY OWNER
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1000 PERF BOND= NONE
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TOTAL BID= $1,320,058 79.95
BID TENDERED= 1,320,058 79.95
C: X.XXXX
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X. XXXX/ CONTRACT FILE & COST SU
LASCHAELS ALT BID/ + PERF BOND NA
06/19/95 XXXXXX XXXXXXXXX, RAM fx
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06/19/95 XXXXX XXXX, HOTEL MEXICO
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Previous Estimates Comparison
02/07/96 2-Story (No Basement) $982,978
03/13/95 Revised Basement 174,000
Previous Total $1,156,978
Difference this Estimate Add $ 163,080
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APPROVED BY:
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DATE:
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