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EXHIBIT 10.9
Return to:
Multi-State Title Agency
000 Xxxx Xxxxx Xx., XXX Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
(000) 000-0000
RECORDING INFORMATION:
REGISTERED LAND CERTIFICATE NO. _____________
This instrument was prepared by:
Xxxxxxxxx X. Xxxxxx, Esq.
Frost & Xxxxxx
2500 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
(000) 000-0000
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SECOND LOAN ASSUMPTION AGREEMENT
This Agreement made effective as of October 16, 1997, by and among PNC
BANK, OHIO, NATIONAL ASSOCIATION ("Lender"), XXXXXXX X. XXXX, an individual and
resident of the State of Ohio, (the "Guarantor"), and HOTEL DISCOVERY, INC., a
Minnesota corporation, as successor by merger to HOTEL MEXICO, INC., an Ohio
corporation formerly known as "KRLP ACQUISITION CORP." (the "New Borrower").
RECITALS:
X. Xxxxxx extended a secured loan in the amount of $1,000,000.00 to the
Kenwood Restaurant Limited Partnership, an Ohio corporation (the "Original
Borrower") with respect to certain premises, more particularly described in
Schedule "A" hereto and made a part hereof (the "Property"), the obligations of
which were guaranteed by the Guarantor and which loan is described herein as the
"Loan."
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B. The Loan is now evidenced and/or secured by the documents listed in
Schedule B hereto (collectively, the "Loan Documents"). All terms used herein,
but not defined, shall have the same definitions as used in the Loan Agreement
identified in Schedule "B" hereto.
C. The Original Borrower transferred all of its right, title and
interest in the Property to Hotel Mexico, Inc. ("HMI").
X. Xxxxxxxx to certain Assignment and Assumption of Lease dated December
15, 1996 by and between Original Borrower and HMI, and filed of record in
Official Record Volume 7268, Page 1034, in the Xxxxxxxx County, Ohio Recorder's
Office, HMI assumed all of the obligations of the Original Borrower under the
Loan.
E. On or about August 1, 1997, HMI merged into the New Borrower, with New
Borrower being the surviving corporation under such merger.
F. New Borrower has requested Xxxxxx to approve said merger and New
Borrower's assumption of HMI's obligations under the Loan Documents, and Xxxxxx
has agreed to provide such consent in accordance with, but subject to, the terms
and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Assumption
The New Borrower, with the consent of Xxxxxx, hereby assumes, all of
the duties and obligations of HMI under the Loan Documents, and the New Borrower
agrees to make all payments in accordance with, and to keep and perform all of
the covenants, obligations and conditions of, the Loan Documents, and now is
principally liable for such duties and obligations. Guarantor continues to
remain liable for all of its duties and obligations under its Guarantee of
Performance and Payment dated October 9, 1996, executed by Guarantor for the
benefit of the Lender with respect to the Loan Documents (the "Guarantee").
Except as otherwise expressly provided in this Agreement, nothing contained
herein shall amend, waive, extend or release any of the respective duties and
obligations of New Borrower or Guarantor contained in the Loan Documents or the
Guarantee.
2. Waivers
The obligations of the New Borrower under the Loan Documents will extend to and
cover any number of renewals or extensions of the time for payment of the Loan
Documents and will not be affected by any surrender, exchange, acceptance, or
release by Lender of any other guarantee or any security held by it for the
payment of the Loan Documents. The New Borrower hereby waive notice of default,
presentment, protest, demand for payment, notice of demand or protest. Lender in
its sole discretion may determine the reasonableness of the period which may
elapse prior to the making of demand upon the New Borrower for payments under
the Loan Documents and need not pursue any
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of its remedies against any collateral, or Guarantor before having recourse
against the New Borrower. If any demand is made at any time upon Lender for the
repayment or recovery of any amount received by it in payment or on account of
the Loan Documents and if Lender repays all or any part of such amount by reason
of any judgment, decree or order of any court or administrative body or by
reason of any settlement or compromise of any such demand, the New Borrower will
be and remain liable hereunder for the amount so paid or recovered to the same
extent as if such amount had never been received originally by Lender.
3. Acknowledgment of Loan Terms
New Borrower acknowledges the following:
(a) As of the effective date of this Agreement and New Borrower is
currently indebted to Lender in the outstanding principal amount of $941,261.58
under the Loan.
(b) The current annual rate of interest payable under the Loan is
acknowledged to be 9.06% per annum and shall remain at such rate until maturity.
(c) The monthly installment payment of principal currently in effect
under the Loan is acknowledged to be $5,785.00, plus accrued interest.
(d) The Loan Documents are valid and binding obligations of the New
Borrower and are enforceable in accordance with their terms.
4. Waiver of Certain Loan Defaults
New Borrower acknowledges that it is currently in default of' one or
more of the following provisions of the Loan Agreement:
(a) Its failure to operate a Hotel Mexico Restaurant in accordance with
Section 6.2.3.
(b) Its failure to timely furnish certain financial statements of
Guarantor to Lender pursuant to Section 6.8.
(c) Its failure to maintain a Total Liabilities to Tangible Net Worth
of 1:1 or less pursuant to Section 6.27.
(d) Its incurrence of indebtedness to Guarantor pursuant to Section
7.1.
(e) The merger of HMI into New Borrower in contravention of Section
7.7.
(f) Its removal of its books and records to another location in
accordance with Section 7.10.
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(g) The assignment of the Restaurant Lease from HMI to New Borrower as
a result of the merger of such entities in contravention of Section 7.16.
In the event that the current offering of stock of New Borrower as filed by New
Borrower pursuant to SB-2 Registration Statement under The Securities Act of
1993 with the Securities and Exchange Commission on September 17, 1997 becomes
effective and closes with net proceeds therefrom equal to or greater than
$10,000,000.00 by December 1, 1997 (collectively, the "Public Offering") and
there are no other defaults by New Borrower or Guarantor (other than specified
in this Section 4) under the Loan Documents or Guarantee, respectively, then
Lender hereby waives each and every such default by New Borrower, provided,
however, that (i) Lender reserves the right to enforce all of its rights and
remedies against New Borrower and Guarantor as a result of such default if the
Public Offering does not occur by December 1, 1997, and (ii) such waiver by
Lender shall not constitute a further waiver of such default as hereafter may
occur or any other default by New Borrower under the Loan Documents.
5. Amendments to Loan Documents
In the event that the Public Offering closes by December 1, 1997, and
there are no other defaults by either New Borrower or Guarantor under the Loan
Documents or the Guarantee, respectively (other than specified in Section 4)
then:
(a) Section 6.2.3 of the Loan Agreement shall be revised to read "Use
of the Property solely as a Hotel Discovery Restaurant in accordance with the
Restaurant Lease." and all references to "Hotel Mexico Restaurant" used in the
Loan Documents shall be revised to "Hotel Discovery Restaurant." All references
to the "Franchise Agreement" shall be deleted.
(b) The provisions of that certain letter dated June 26, 1997 executed
by Xxxxxx addressed to HMI, which reduces the Tangible New Worth contained in
Section 6.26 of the Loan Agreement from $3,500,000.00 to $1,500,000.00 shall be
null and void, without further force and effect, it being understood that the
Tangible New Worth referenced in said Section 6.26 shall be $3,500,000.00.
(c) The following section shall be incorporated as Section 6.28 into
the Loan Agreement: Maintenance of Cash. Shall maintain at all times cash under
its exclusive control, not subject to any pledge, security or similar
arrangement, of $2,500,000.00 or more.
(d) The last sentence of Section 7.11 of the Loan Agreement shall be
deleted.
(e) The maturity date of the Note shall be changed from "October 1,
1999" to "February 1, 1999".
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6. Release
New Borrower and Guarantor hereby release Lender and its employees,
agents and counsel, from all claims, losses, damages and expenses, including
without limitation, reasonable attorneys' fees, arising out of or relating to
the Loan, any amendments, modifications or other agreements between HMI, New
Borrower, Guarantor and/or Lender, and Xxxxxx's administration of the Loan and
negotiation of this Agreement.
7. Inducements
As an inducement for the Lender to enter into this Agreement, New
Borrower and Guarantor represent, warrant and state to Lender the following:
(a) The Loan Documents constitute the valid, legal and binding
obligations of the New Borrower, which are enforceable in accordance with their
terms; and the liens and security interests of the security documents comprising
the Loan Documents are valid and substituting liens and interests against the
collateral described therein, first in priority of title, except for matters
disclosed in that certain Loan Policy of Title Insurance No. 36 0138 010
00004177 issued by Chicago Title Insurance Company to Lender.
(b) The New Borrower has received and reviewed a copy of the Loan
Documents.
(c) There are no claims, causes of action, defenses or rights of
set-off against Lender with respect to the Loan Documents or Guarantee,
respectively.
(d) Except for the defaults by New Borrower under the Loan as provided
in Section 4 hereof, the New Borrower and Guarantor are currently not in default
under the Loan Documents or the Guarantee, respectively, and have fully
performed all of their respective duties and obligations thereunder through and
including the effective date of this Agreement. Furthermore, Xxxxxx currently is
entitled to enforce all of its rights and remedies against New Borrower and
Guarantor under the Loan Documents or Guarantee, respectively, or otherwise as a
result of the defaults by New Borrower under the Loan as provided in Section 4.
(e) The Guarantee is in full force and effect and constitute a valid
and binding obligations of the Guarantor thereunder, which is enforceable in
accordance with its terms.
(f) The consummation of this Agreement by New Borrower and Guarantor
are their voluntary and free deed and act, without any misapprehension as the
effect hereof, and without any coercion, duress, or overreaching or other
misconduct by the Lender or any of its employees, representatives or agents.
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(g) This Agreement and the consummation of the transaction contemplated
hereby constitute the valid, enforceable and binding obligation of the New
Borrower and Guarantor, respectively.
(h) Neither the execution of this Agreement nor the consummation of any
of the transactions contemplated hereby will constitute a violation of, be in
conflict with or constitute a default under (or with the passage of time or
delivery of notice, or both), or will constitute a default under any term or
provision of any agreement which the New Borrower or Guarantor is a party to or
bound by.
(i) Concurrent with the signature and delivery of this Agreement by the
parties hereto, the New Borrower owns full, absolute and complete title to the
Property, subject to the lien of the security documents comprising the Loan
Documents and the fee simple or reversionary interest of Xxxxxxx X. Xxxxxxxx,
Trustee, under the Restaurant Lease. Furthermore, the transfer of HMI's interest
in the Property is permitted by the terms of the Restaurant Lease and does not
require the prior consent or approval of the Lessor thereunder.
(j) Xxxxxx has acted at all times in a fair, reasonable, good faith
manner in connection with its administration and enforcement of the Loan
Documents, its dealings with the parties hereto with respect to the Loan, and
all other transactions related to this Agreement or the Loan.
(k) Except to the extent expressly amended under the Loan Documents or
this Agreement, all of the representations and warranties of HMI contained in
the Loan Agreement are incorporated and restated herein by the New Borrower as
of the effective date of this Agreement, without condition or exception, as
though fully stated in this Agreement, and such representations and warranties
are true and accurate.
(l) New Borrower has adopted the necessary resolution to enter into
this Agreement and its signatory to this Agreement is authorized to execute the
same and is in good standing with New Borrower.
8. General
(a) The New Borrower shall be responsible for the out-of-pocket
expenses incurred by the Lender in connection with this Agreement.
(b) This Agreement will be governed by and construed in accordance with
the laws of the State of Ohio. This Agreement will be recorded at the New
Borrower's expense.
(c) This Agreement will be binding upon each of the parties hereto and
each of their respective personal representatives, heirs, successors and assigns
and will inure to the benefit of Lender and its successors and assigns, but all
duties and obligations of the New Borrower and Guarantor shall not be delegated
unto any other party, except as provided herein.
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(d) Notwithstanding anything to the contrary, the lien and security
interests of the security documents comprising the Loan Documents shall retain
their original priority of title.
9. Consent to Jurisdiction; Waiver of Jury Trial. This Agreement has been
executed, delivered and accepted at and will be deemed to have been made at
Cincinnati, Ohio and will be interpreted and the rights and liabilities of the
parties hereto determined in accordance with the laws of the State of Ohio, and
the New Borrower and Guarantor hereby agree to the exclusive jurisdiction of any
state or federal court located within Xxxxxxxx County, Ohio and consents that
all service of process to New Borrower and Guarantor shall be sent in the
manner, set forth in the Loan Documents, except that the address to which
notices are to be sent to New Borrower is as follows:
PNC Bank, Ohio, National Association
P.O. Box 1198
Cincinnati, Ohio 45201-1198
Attn: Xxxxx Xxxxxx
with a copy to: Frost & Xxxxxx LLP
2500 PNC Center
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxxxxxx X. Xxxxxx
with a copy to: Hotel Discovery, Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
and
with a copy to: Xxxxxx Xxxxxxx Xxxxxx & Brand
3300 Norwest Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxx, P.A.
Nothing herein contained will prevent the Lender from bringing any
action or exercising any rights against any property of the New Borrower within
any other state or nation to enforce any award or judgment obtained in the
federal or state court located within Xxxxxxxx County, Ohio. The New Borrower
and Guarantor waive any objection based on forum non-conveniens and any
objection to venue or any action instituted hereunder. The New Borrower and
Guarantor and the Lender each waive any right to trial by jury in any action or
proceeding related to this Agreement, the Loan Documents or any transaction
contemplated in any of such documents.
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10. Miscellaneous
This Agreement may be executed in counterparts. This Agreement,
together with the Loan Documents, contain the entire agreement among the parties
hereto. The Agreement shall be included in the definition of "Loan Documents" as
used herein.
11. CONFESSION OF JUDGMENT. ANY ATTORNEY-AT-LAW MAY APPEAR IN ANY COURT OF
RECORD SITUATED IN THE COUNTY WHERE EITHER NEW BORROWER OR GUARANTOR THEN
RESIDES OR CONDUCTS BUSINESS, OR IN THE COUNTY WHERE NEW BORROWER SIGNED THIS
WARRANT, OR IN ANY OTHER COURT IN THE STATE OF OHIO OR IN ANY OTHER STATE OR
TERRITORY OF THE UNITED STATES, AT ANY TIME AFTER THE DEBT HEREBY EVIDENCED
SHALL BECOME DUE, EITHER AT ITS STATED MATURITY OR BY ACCELERATION OR OTHERWISE,
AND MAY WAIVE THE ISSUING AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST
XXXXXXXX, JOINTLY AND SEVERALLY, IN FAVOR OF XXXXXX, FOR THE AMOUNT THEN OWING
HEREIN, TOGETHER WITH THE COSTS OF SUIT, AND THEREUPON RELEASE ALL ERRORS AND
WAIVE ALL RIGHTS OF APPEAL AND STAYS OF EXECUTION. NO SUCH JUDGMENT OR JUDGMENTS
AGAINST LESS THAN ALL OF THE UNDERSIGNED SHALL BE A BAR TO A SUBSEQUENT JUDGMENT
OR JUDGMENTS AGAINST ANY ONE OR MORE OR THE UNDERSIGNED AGAINST WHOM JUDGMENT
HAS NOT BEEN OBTAINED HEREON, THIS BEING A JOINT AND SEVERAL WARRANT OF ATTORNEY
TO CONFESS JUDGMENT.
Executed as of October 16, 1997.
WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
NEW BORROWER:
HOTEL DISCOVERY, INC.
WITNESSES:
/s/ Xxxxxx X. Xxxxx
Print Name: Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
Print Name: Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxxxx Title: President
Print Name: Xxxxx Xxxxxx
WARNING: BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY
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HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, ON HIS PART
TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
WITNESSES: GUARANTOR:
/s/ Xxxxxx X. Xxxxx
Print Name: Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxx
Print Name: Xxxxxxx X. Xxxx
/s/ Xxxxx Xxxxxx Title: President
Print Name: Xxxxx Xxxxxx
APPROVED AND AGREED:
WITNESSES: LENDER:
/s/ Xxxxxx X. Xxxxx PNC BANK, OHIO, NATIONAL ASSOCIATION
Print Name: Xxxxxx X. Xxxxx
/s/ Xxxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
Print Name: Xxxxx Xxxxxx Title: Xxxxx Xxxxxx
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a notary public,
this 16th day of October, 1997 by Xxxxxxx X. Xxxx, the President of HOTEL
DISCOVERY, INC.
/s/ Xxxxx Xxxxxxx
Notary Public
STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a notary public,
this 16th day of October, 1997 by XXXXXXX X. XXXX.
/s/ Xxxxx Xxxxxxx
Notary Public
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STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
The foregoing instrument was acknowledged before me, a notary public,
this 16th day of October, 1997 by Xxxxx Xxxxxx, the Loan Officer of PNC BANK,
OHIO, NATIONAL ASSOCIATION, a national banking association on behalf of such
association.
/s/ Xxxxx Xxxxxxx
Notary Public
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SCHEDULE A
The real estate underlying, and improvements constructed on the Premises covered
by that certain Lease Agreement executed December 9, 1994, a memorandum of which
was recorded on August 26, 1996, in Official Record 7133, Page 1322 of the
Xxxxxxxx County, Ohio Registered Land Records in favor of Kenwood Restaurant,
Inc.
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SCHEDULE B
1. Promissory Note, dated October 1, 1996, made by Original Borrower in
favor of Lender in the original principal amount of $1,000,000.00;
2. Loan Agreement, dated October 9, 1996, by and between Original Borrower
and Xxxxxx;
3. Security Agreement dated October 9, 1996, by and between Original
Borrower and Xxxxxx;
4. Assignment of License Agreement as collateral security dated October 9,
1996, by and between Original Borrower and Xxxxxx;
5. Conditional Assignment dated October 9, 1996, by and among Original
Borrower, Cintech Construction, Inc., and Lender;
6. UCC-1 Financing Statements;
7. Open-End Mortgage, Assignment of Rents and Leases and Security
Agreement, dated August 23, 1996, and recorded August 26, 1996 in
Official Record Book 7133, Page 1338, Xxxxxxxx County, Ohio Registered
Land Records by and between Original Borrower and Xxxxxx;
8. First Amendment To Open-End Mortgage, Assignment of Rents and Leases
and Security Agreement, dated October 9, 1996 and recorded October 29,
1996 in Official Record Book 7188, Page 792, of the Xxxxxxxx County,
Ohio Registered Land Records by and between Original Borrower and
Xxxxxx;
9. Guarantee of Payment and Performance of Xxxxxxx X. Xxxx.
10. Loan Assumption Agreement by and among Original Borrower, Xxxxxxx X.
Xxxx, Kenwood Restaurant, Inc., ("Guarantor") and HMI.
11. All other documents executed or furnished by Original Borrower in
connection with the aforesaid documents.
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