Attached files
| file | filename |
|---|---|
| EX-10.29 - EXHIBIT 10.29 - SONESTA INTERNATIONAL HOTELS CORP | exhibit10_29.htm |
| EX-10.28 - EXHIBIT 10.28 - SONESTA INTERNATIONAL HOTELS CORP | exhibit10_28.htm |
| EX-10.27 - EXHIBIT 10.27 - SONESTA INTERNATIONAL HOTELS CORP | exhibit10_27.htm |
| 8-K - SONESTA INTERNATIONAL HOTELS 8-K 2-18-2010 - SONESTA INTERNATIONAL HOTELS CORP | form8-k.htm |
EXHIBIT
10.26
TERM LOAN
AGREEMENT
Dated: as
of the 12th day of February, 2010
Between
PETER J.
SONNABEND AND BOY A.J. VAN RIEL, AS TRUSTEES OF THE CHARTERHOUSE OF CAMBRIDGE
TRUST, UNDER DECLARATION OF TRUST DATED DECEMBER 27, 1963 AND RECORDED IN THE
MIDDLESEX (SOUTH) REGISTRY OF DEEDS IN BOOK 11160, PAGE 340, AS AMENDED BY
AMENDMENT OF DECLARATION OF TRUST DATED JULY 8, 1966 AND RECORDED IN SAID
REGISTRY IN BOOK 11160, PAGE 359
AND
SONESTA
OF MASSACHUSETTS, INCORPORATED, A MASSACHUSETTS CORPORATION
(“BORROWER”)
and
RBS
CITIZENS, NATIONAL ASSOCIATION (“LENDER”)
THIRTY-TWO
MILLION DOLLAR ($32,000,000.00) TERM LOAN
SECURED
BY PROPERTY KNOWN AS
THE ROYAL
SONESTA HOTEL, 23 CAMBRIDGE PARKWAY AND 40 EDWIN LAND BOULEVARD,
CAMBRIDGE,
MASSACHUSETTS
Signatures
Exhibit
A Definitions
Exhibit
B Ownership
Interests and Taxpayer Identification
Numbers - Borrower
Exhibit
B-1 Ownership
Interests and Taxpayer Identification
Numbers - Guarantor
Exhibit
C Authorized
Representatives
Exhibit
D Form
of Compliance Certificate
LOAN
AGREEMENT
This is
an agreement (“Loan
Agreement” or “Agreement”) made and entered
into as of the 12th day of
February, 2010 between PETER J. SONNABEND AND BOY A.J. VAN RIEL, AS TRUSTEES OF
THE CHARTERHOUSE OF CAMBRIDGE TRUST, under Declaration of Trust dated December
27, 1963 and recorded in the Middlesex (South) Registry of Deeds in Book 11160,
Page 340, as amended by Amendment of Declaration of Trust dated July 8,
1966 and recorded in said Registry in Book 11160, Page 359 (“Trust”) and SONESTA OF
MASSACHUSETTS, INCORPORATED, a Massachusetts corporation (“Sonesta of Massachusetts”)
(the Trust and Sonesta of Massachusetts being referred to herein collectively as
“Borrower”) and RBS
CITIZENS, NATIONAL ASSOCIATION, a national banking association having an address
at 28 State Street, Boston, Massachusetts 02109 ( “Lender”).
WITNESSES:
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1.
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1.1 Defined
Terms. Capitalized terms used in this Agreement are defined
either in Exhibit A,
or in specific sections of this Agreement, or in another Loan Document, as
referenced in Exhibit A.
1.2 Borrower. The
Trust and Sonesta of Massachusetts, jointly and severally.
1.3 Land and Improvements;
Property. The Trust owns approximately 2.30 acres of land
(“Land”) located at
40 Edwin Land Boulevard/23 Cambridge Parkway, Cambridge, Massachusetts, as
more particularly described in the Mortgage which is shown on the plan dated
February, 2010 (“Survey
Plan”) prepared by Meridian Associates, Inc. (“Surveyor”). The
Land is presently improved by a 10-story hotel known as the Royal Sonesta Hotel
of Boston (“Hotel”)
containing approximately 381,432 gross square feet including 400 guest rooms,
function rooms, a full service sit-down restaurant, retail and other ancillary
spaces, and a structured parking garage having 170 vehicle spaces ( “Improvements”). The
Land, Improvements, the Collateral and all appurtenant rights are collectively
called the “Property”.
1.4 Use of Loan
Proceeds. Borrower has applied to Lender for a loan of
Thirty-Two Million Dollars ($32,000,000.00) (“Loan”) the proceeds of which
are to be used to refinance the Property and to pay costs and expenses incident
to closing the refinance of the Loan.
1.5 Loan. Subject
to all of the terms, conditions and provisions of this Agreement, and of the
agreements and instruments referred to herein, Lender hereby agrees to make the
Loan to the Borrower, and upon such funding Borrower agrees to accept and repay
the Loan.
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2.
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LOAN
PROVISIONS.
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2.1 Amount of
Loan. The Loan shall be in the amount of Thirty-Two Million
Dollars ($32,000,000.00).
2.2 Term of
Loan. The Loan shall be for a term (“Term”) commencing on the date
hereof and ending on March 1, 2015 (“Maturity Date”).
2.3 Interest Rate and Payment
Terms. The Loan shall be payable as to interest and principal
in accordance with the provisions of the Note. The Note also provides
for interest at a Default Rate, Late Charges and prepayment rights and
fees. Any and all interest rate selection and conversion provisions
in the Note are to be administered by the Lender.
2.4 Commitment
Fee. Borrower shall pay to the Lender on the Closing Date
a commitment fee in the amount of Three Hundred Twenty Thousand Dollars
($320,000.00).
2.5 Acceleration. The
Lender may accelerate the Loan following an Event of Default. Upon
such an acceleration, all principal, accrued interest and costs and expenses
shall be due and payable together with interest on such principal at the Default
Rate and any applicable prepayment fees set forth in the Note.
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3.
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SECURITY FOR THE LOAN;
LOAN AND SECURITY DOCUMENTS.
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3.1 Security. The
Loan together with interest thereon and all other charges and amounts payable
by, and all other obligations of, Borrower to the Lender, with respect to the
Property or the Loan whenever incurred, direct or indirect, absolute or
contingent (“Obligations”) shall be secured
by the following “Security” which Borrower
agrees to provide and maintain:
3.1.1 Mortgage and Security
Agreement. A first priority mortgage and security agreement
(“Mortgage”) granted to
the Lender, on Borrower’s right, title, and interest in and to (i) the Property,
(ii) all land, improvements, furniture, fixtures, goods, equipment, and other
assets (including, without limitation, accounts, contracts, contract rights,
Licenses and Permits, general intangibles, documents and instruments), including
all after-acquired property, owned, or in which Borrower has or obtains any
interest, in connection with the Property; (iii) all insurance proceeds and
other proceeds therefrom, and (iv) all other assets of Borrower whether now
owned or hereafter acquired and used in connection with the
Property.
3.1.2 Collateral Assignment of
Leases and Rents. A first priority collateral assignment of
leases and rents (“Assignment
of Leases and Rents”) granted to the Lender with respect to Borrower’s
right, title, and interest in and to all leases, subleases and occupancy rights
of the Property and all income and profits to be derived from the operation and
leasing of the Property.
3.1.3 Collateral Assignment of
Contracts, Licenses and Permits. A first priority collateral
assignment and security agreement (“Assignment of Contracts”)
granted to the Lender with respect to Borrower’s right, title, and interest in
and to all Licenses and Permits and all contracts, agreements (including
management and leasing agreements) and warranties now owned or hereafter
acquired by Borrower and related in any manner to the Property.
3.1.4 Joint and Several
Environmental Indemnity Agreement. A compliance and
indemnification agreement with respect to environmental matters (“Environmental Indemnity”) from
Borrower and Guarantor jointly and severally, in favor of the
Lender.
3.1.5 Interest Rate
Agreement. A first priority assignment of the Interest Rate
Agreement from Borrower in favor of the Lender (the “Interest Rate
Assignment”).
3.1.6 Guaranty of Partial
Repayment. A limited guaranty of certain Borrower obligations
(the “Guaranty”) from
Sonesta International Hotels Corporation, a New York corporation (the “Guarantor”).
3.1.7 Cash Collateral Pledge and
Security Agreement. A first priority pledge and security
interest in the Cash Reserve (the “Cash Collateral Pledge”)
granted by Borrower to Lender with respect to Cash Reserve Account.
3.1.8 Liquor License Pledge and
Security Agreement. A first priority pledge and security
interest in the Liquor License (the “Liquor License Pledge”)
granted by Borrower to Lender.
3.2 Loan Documents
and Security Documents. The Loan shall be made, evidenced,
administered, secured and governed by all of the terms, conditions and
provisions of the “Loan
Documents”, each as the same may be hereafter modified or amended,
consisting of: (i) this Loan Agreement; (ii) the Note in the
aggregate original principal amount of Thirty-Two Million Dollars
($32,000,000.00) (together with any additional Notes delivered as provided
herein, the “Note”);
(iii) the Mortgage and related UCC financing statements; (iv) the Assignment of
Leases and Rents; (v) the Assignment of Contracts; (vi) the Environmental
Indemnity; (vii) the Interest Rate Assignment, (viii) the Guaranty; (ix) the
Cash Collateral Pledge; (x) the Liquor License Pledge; and (xi) any other
documents, instruments, or agreements executed to further evidence or secure the
Loan.
Each of
the Loan Documents listed in items (i) through (ix), inclusive, is dated of even
date herewith. The Mortgage, Assignment of Leases and Rents,
Assignment of Contracts, Licenses and Permits, Interest Rate Assignment,
Guaranty, Environmental Indemnity, Cash Collateral Pledge, and Liquor License
Pledge are sometimes collectively referred to as the “Security
Documents”.
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4.
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CONTINUING AUTHORITY
OF AUTHORIZED
REPRESENTATIVES.
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The
Lender is authorized to rely upon the continuing authority of the persons,
officers, signatories or agents hereafter designated (“Authorized Representatives”)
to bind Borrower with respect to all matters pertaining to the Loan and the Loan
Documents including, but not limited to, the selection of interest
rates. Such authorization may be changed only upon written notice to
Lender accompanied by evidence, reasonably satisfactory to Lender, of the
authority of the person giving such notice and such notice shall be effective
not sooner than five (5) Business Days following receipt thereof by
Lender. The present Authorized Representatives are listed on Exhibit C.
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5.
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LENDER’S
CONSULTANTS.
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5.1 Right to
Employ. The Lender shall have the right to employ, its own
personnel, or one or more engineers, architects, builders or other construction
specialists, environmental advisors, scientists, accountants, and attorneys to
act as an advisor to the Lender in connection with the Loan (each of which shall
be a “Lender’s
Consultant”). The Lender’s Consultants shall maintain
appropriate liability insurance and shall not disclose any information obtained
in connection with their work except as is necessary to discharge their duties
or as required by law. The fees of Lender’s Consultants shall be paid
by Lender unless Lender’s consultants are engaged to advise Lender in connection
with a Default by Borrower under the Loan Documents in which even such fees
shall be paid by Borrower.
5.2 Functions. The
functions of a Lender’s Consultant shall include, without limitation: (i)
inspection and physical review of the Property; (ii) review and analysis of any
work to be done in connection with the Property; (iii) review and analysis of
environmental matters; and (iv) review and analysis of financial and legal
matters.
5.3 Payment. If
and to the extent Borrower is required to pay costs and fees of Lender’s
Consultants in accordance with the terms and conditions of this Agreement, the
costs and fees of Lender’s Consultants shall be paid by Borrower within thirty
(30) days after receipt of the written invoice therefor.
5.4 Access. Subject
to the rights of hotel guests and other third parties, Borrower shall provide
Lender’s Consultants with continuing access to all aspects of the Property and
books and records related thereto at reasonable times during the day and upon at
least two (2) Business Days’ prior written notice to Borrower prior to the
occurrence of a Default or Event of Default, and at any time without notice
after a Default or Event of Default has occurred and is continuing.
5.5 No Liability. With the exception of any claim arising
out of any Lender’s Consultant’s negligence or for failure to maintain any
insurance policy required to be maintained by such Lender’s Consultant as
required above or for any Lender’s Consultant’s gross negligence or willful
misconduct for which the Borrower shall have a claim against
such Lender’s Consultants, neither Lender nor any of Lender’s
Consultants shall have liability to Borrower, or any third party, on account of:
(i) services performed by Lender’s Consultant; (ii) any failure or neglect by
Lender’s Consultant to properly perform services; or (iii) any approval or
disapproval of work, plans or other matters. Neither Lender nor
Lender’s Consultant shall have any obligation regarding proper performance of
work related to the Property. Borrower shall have no rights under or
relating to any agreement, report, or similar document prepared by any Lender’s
Consultant for Lender.
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6.
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LOAN DISBURSEMENT AND
BORROWER’S REQUIRED EQUITY
CONTRIBUTIONS.
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6.1 Advance of Loan
Proceeds. Lender shall, subject to compliance with all of the
other terms, conditions and provisions of this Agreement, make disbursement of
the Loan proceeds as set forth in Section 2.1.
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7.
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CONDITIONS
PRECEDENT.
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It shall
be a condition precedent of Lender’s obligation to close and fund the Loan that
each of the following conditions precedent be satisfied in full (as determined
by Lender in its sole discretion), unless specifically waived in writing by
Lender at or prior to closing and funding the Loan:
7.1 Satisfactory Loan
Documents. Each of the Loan Documents and Security Documents
shall be satisfactory in form, content and manner of execution and delivery to
Lender and Lender’s counsel.
7.2 No Material
Change. No material adverse change shall have occurred in the
financial condition, business, affairs, operations or control of Borrower, or
Guarantor since the date of the latest respective financial information most
recently delivered to Lender.
7.3 Warranties and
Representations Accurate. All warranties and representations
made by or on behalf of Borrower and Guarantor to Lender shall be true, accurate
and complete in all material respects and shall not omit any material fact
necessary to make the same not misleading.
7.4 Financials and
Appraisals. The Lender shall have received and
approved: (i) financial statements from Borrower and Guarantor
complying with the standards set forth in Section 9.2.; (ii) an appraisal of the
Property in form and substance and from an appraiser acceptable to the Lender
setting forth a “going concern” appraised value of the Property of not less than
65% of the amount of the Loan. Lender acknowledges that the
conditions in this Section 7.4 have been satisfied.
7.5 Validity and Sufficiency of
Security Documents. The Mortgage and the other Security
Documents have been filed or recorded as required to create a valid and
perfected lien on the property described therein (“Collateral”) and each of the
Security Documents and related UCC filings shall have been duly recorded and
filed to the satisfaction of Lender and Lender’s counsel.
7.6 No Other Liens; Taxes and
Municipal Charges Current. The Collateral shall not be subject
to any liens or encumbrances, whether inferior or superior to the Loan Documents
or the Security Documents, except in respect of: (i) real estate taxes and
personal property taxes not yet due and payable; and (ii) Permitted
Encumbrances, if any. All real estate taxes, personal property taxes
and other municipal charges relating to any of the Collateral shall be
current.
7.7 Property
Matters. Lender shall have received each of the following in form and
substance satisfactory to Lender: (i) evidence of Licenses and
Permits for the Property sufficient to allow the Property to be operated as a
first-class hotel in the ordinary course of business; (ii) a report from a
Lender’s Consultant to the effect that the Property is in good repair and safe
condition with no structural deficiencies and no material need for repairs or
replacements; and (iii) true, correct and complete copies of all management
agreements and other agreements related to the operation of the
Hotel.
7.8 Compliance With
Law. Lender shall have received evidence satisfactory to
Lender that:
(i) Present
Compliance. All real estate and tangible personal property
constituting or intended to constitute Collateral for the Loan complies in all
material respects with all applicable Laws and the provisions of all applicable
Licenses and Permits.
(ii) No Prohibitions or
Violations. There are no applicable Laws which prohibit or
adversely limit the use of the Property for the purposes the same are intended
for, nor is there any outstanding and uncured violation of any applicable
Laws.
(iii) Licenses and
Permits. All Licenses and Permits and private approvals of
every nature whatsoever, if any, which are reasonably necessary in order to
allow the operation of the Property as contemplated by this Agreement and as
needed under applicable Laws have been duly and finally received with all appeal
periods therefrom having elapsed, with no appeal having been taken therefrom,
and with no violations existing under the terms thereof.
7.9 Title Insurance; Other
Evidence of Perfection. Lender shall have received: (i) a
mortgagee’s title insurance policy in form and substance satisfactory to the
Lender, subject to such exceptions as may be approved by Lender and Lender’s
counsel and accompanied by such endorsements or special coverages required by
Lender; and (ii) such other evidence of the perfection of its security interests
as Lender and Lender’s counsel may require.
7.10 Survey. Lender
shall have received and approved a current, on-site ALTA/ACSM Class A urban
instrument survey of the Land containing a certification thereon, or on a
separate surveyor’s certificate, of the Surveyor, such certification to be in
form and substance acceptable to Lender.
7.11 Condition of
Property. There shall have been no material unrepaired or
unrestored damage or destruction by fire or otherwise to any of the real or
tangible personal property comprising or intended to comprise the
Collateral.
7.12 No
Takings. Neither the Property nor any material portion thereof
shall have been taken by eminent domain nor shall there be any threat of such a
taking.
7.13 Insurance. Borrower
shall have provided to Lender with respect to the Property and the Collateral
evidence of: (i) insurance coverages which meet the property, hazard and other
insurance requirements set forth in Section 2.04 of the Mortgage to the
satisfaction of Lender; and (ii) prepayment of the premiums for such insurance
for at least three (3) months.
7.14 Utilities; Water;
Drainage. Lender shall have received reports addressed to
Lender from qualified engineers satisfactory to Lender that sanitary drinking
water, sanitary sewer disposal systems, utility and power connections and storm
drainage adequate for the Property are available as a matter of right for the
Property and that all Licenses and Permits and contracts required therefor have
been duly obtained.
7.15 Hazardous
Waste, Hazardous Materials and Toxic Substances. Lender
shall have received, and in its sole discretion approved, satisfactory reports
addressed to Lender from acceptable, qualified professionals prepared in
accordance with Lender’s protocols indicating to Lender’s judgment the
acceptability of the environmental risk associated with the Property, addressing
the existence of any Hazardous Materials at, or which may affect, the Property
and the Property’s compliance with Environmental Laws.
7.16 Organizational Documents and
Entity Agreements. Lender shall have received and approved the
declaration of trust of the Trust, the articles of organization and bylaws of
Sonesta of Massachusetts and of the Guarantor.
7.17 Votes, Consents and
Authorizations. Lender shall have received and approved
certified copies of all partnership, entity and corporate votes, consents and
authorizations as is required to evidence authority for: (i) closing the Loan
and the transactions contemplated hereby; (ii) providing continuing
authorization to designated persons to deal in all respects on behalf of
Borrower; and (iii) the execution of all Loan Documents.
7.18 Legal and Other
Opinions. Lender shall have received and approved legal
opinion letters from counsel representing Borrower and Guarantor which meet
Lender’s legal opinion requirements.
Lender
shall also have received from qualified attorneys, engineers, surveyors and
architects, such other certificates, opinions, surveys, and other evidence of
compliance with each of the conditions herein set forth as Lender may reasonably
require (i) stating that all Loan Documents have been duly authorized, executed
and delivered by Borrower and Guarantor and are valid, binding and enforceable
against the Borrower and Guarantor subject to customary exceptions for loans of
this size and nature, (ii) indicating the due organization, legal existence and
good standing of Borrower and Guarantor and any manager thereof; and (iii)
indicating compliance of the Property in all material respects with all Laws
applicable to the use, occupancy and operation of the Property and the issuance
of all permits and approvals necessary thereof.
7.19 Leasing
Matters. If requested by Lender, Lender shall have approved
all tenants and leases in effect at the time of closing, and shall have received
satisfactory estoppel certificates and subordination, non-disturbance and
attornment agreements (“SNDAs”) from all tenants
designated by Lender. Each such estoppel certificate and SNDA shall
be in form and substance acceptable to Lender.
7.20 Interest Rate
Agreement. Lender shall have received the Interest Rate
Agreement.
7.21 Cash Reserve
Account. Borrower shall have deposited with Lender the amount
of Five Million Dollars ($5,000,000.00) (the “Cash
Reserve”). When a Debt Service Coverage Ratio of 1.50 to 1.0,
or greater has first been achieved for four (4) consecutive calendar quarters,
Lender agrees to release to Borrower one-half of the Cash Reserve in the amount
of Two Million Five Hundred Thousand Dollars ($2,500,000.00). The
Debt Service Coverage Ratio shall first be tested for the calendar quarter
ending March 31, 2010. The balance of the Cash Reserve shall be
released to Borrower when a Debt Service Coverage Ratio of 1.50 to 1.0, or
greater has subsequently been achieved for another, subsequent four (4)
consecutive calendar quarters provided that in each case, at the time of the
release, there is no Default or Event of Default under any of the Loan
Documents. Each disbursement of proceeds of the Cash Reserve shall be
deemed to be a reaffirmation by Borrower that each of the representations and
warranties contained in the Loan Documents is true and correct in all material
respects as of the date of such disbursement. In addition, at
Lender’s request, Borrower shall reaffirm such representations and warranties in
writing prior to each disbursement of the Cash Reserve.
7.22 Sufficient
Funds. Evidence that there have been expended and/or are
available, from resources other than the proceeds of the Loan, amounts which
will, when added to the amount of the Loan, be sufficient to cover all costs
reasonably anticipated to be incurred in connection with (i) the operation of
the Property, and (ii) the performance by the Borrower of its obligations under
this Agreement and the other Loan Documents.
7.23 Costs and
Expenses. Evidence that the Borrower shall have paid in full all
reasonable, out of pocket costs and expenses incurred by the Lender in
connection with making the Loan, including reasonable, out of pocket legal fees
and disbursements, environmental report fee, title insurance premiums,
consultant’s fees and appraisal fees.
7.24 No
Default. There shall not be any Default under any of the Loan
Documents or any breach of or noncompliance by Borrower with the terms of the
Term Sheet.
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8.
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WARRANTIES AND
REPRESENTATIONS.
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Borrower
warrants and represents to Lender for the express purpose of inducing Lender to
enter into this Agreement, to make the Loan, and to otherwise complete all of
the transactions contemplated hereby, that as of the date of this Agreement,
upon the date the Loan is funded until the Loan has been repaid and all
obligations to Lender has been satisfied as follows:
8.1 Financial
Information. True, accurate and complete financial statements
of Borrower and Guarantor have been delivered to Lender and the same fairly
present the financial condition of Borrower and Guarantor as of the dates
thereof and no material and adverse change has occurred in such financial
condition since the dates thereof. All financial statements of
Borrower and Guarantor hereafter furnished to Lender shall be true, accurate and
complete and shall fairly present the financial condition of Borrower and
Guarantor as of the dates thereof.
8.2 No
Violations. The performance by Borrower and Guarantor of their
respective obligations under the Loan Documents shall not constitute a violation
of, or conflict with, any law, order, regulation, contract, agreement or
organizational document to which Borrower or Guarantor is a party or by which
Borrower or Guarantor, or the property thereof, may be bound.
8.3 No
Litigation. There is no material litigation now pending, or to
the best of Borrower’s knowledge threatened, against Borrower or Guarantor which
if adversely decided could materially impair the ability of Borrower or
Guarantor to pay and perform its obligations hereunder or under the other Loan
Documents. There is no litigation, whether or not material, pending,
or to the best of Borrower’s knowledge threatened against Borrower or Guarantor
in which the amount in controversy exceeds Fifty Thousand Dollars ($50,000.00)
which either: (i) is not covered by insurance, or (ii) has not been previously
disclosed to Lender or is not disclosed to Lender within thirty (30) days of
Borrower or Guarantor first having knowledge thereof, together with a written
explanation of why such litigation is not material.
8.4 Leases. True
and complete copies of all Required Leases of the Property which are now in
effect (and all guaranties thereof) have been delivered to the
Lender. Such Required Leases have not been further amended or changed
in any material respect and are in full force and effect, enforceable in
accordance with the terms thereof, subject, however, to the terms of the Loan
Documents. Lender acknowledges that it has reviewed and approved the
Required Leases now in effect for the Property.
8.5 Garage Management Contract;
Other Contracts. There is no franchise, operating or
management agreement giving any party other than Borrower the right to own,
operate or manage the Hotel, except for that certain Management Contract between
Sonesta of Massachusetts and Pilgrim Parking, Inc. dated January 1, 1995,
as amended (the “Garage Management Contract”). The Garage Management
Contract is in full force and effect with no defaults thereunder or deficiencies
in the performance of obligations thereunder and no amendment or modifications
not previously approved by Lender. All of the parties to the Garage
Management Contract are in full compliance with their respective obligations
thereunder.
8.6 Compliance With
Laws. The Property complies with, and shall continue to comply
with, all material Laws and any and all covenants, conditions, restrictions or
other matters which affect the Property.
8.7 Required
Licenses and Permits. All Licenses and Permits which are
required in order to operate the Property in the usual course of business have
been duly and properly obtained, and will remain in full force and effect, and
have been, and shall be complied with, in all respects.
8.8 Curb Cuts and Utility
Connections. All required curb cuts, utility connections and
Licenses and Permits therefor have been duly obtained and are in full force and
effect and all utility services as reasonably required for water, gas, electric,
telephone, sewer and storm drainage and sanitary waste disposal are and shall be
available as a matter of right and to an extent adequate to serve the Property
for its intended uses.
8.9 Good Title and No
Liens. The Trust is the lawful owner of the Property and of
areas over, under or on which utility or passage easements are required to make
use of the Property and parking as contemplated by the Loan Documents, and is
and will be the lawful owner of the Property, free and clear of all liens and
encumbrances of any nature whatsoever, except for the matters, if any, which are
listed as Permitted Title Exceptions in the Mortgage.
8.10 Use of
Proceeds. The proceeds of the Loan shall be used solely and
exclusively to refinance the Property, and for payment of costs and expenses
incurred in connection with the financing provided by the Loan. No
portion of the proceeds of the Loan shall be used directly or indirectly, and
whether immediately, incidentally or ultimately (i) to purchase or carry any
margin stock, or to extend credit to others for the purpose thereof, or to repay
or refund indebtedness previously incurred for such purpose, or (ii) for any
purpose which would violate or is inconsistent with the provisions of
regulations of the Board of Governors of the Federal Reserve System including,
without limitation, Regulations G, T, U and X thereof.
8.11 Entity
Matters.
8.11.1 Organization. Trust
is a duly organized validly existing business trust in good standing under the
laws of the Commonwealth of Massachusetts, and has all requisite power and
authority to conduct its business and to own its property, as now conducted or
owned, and as contemplated by the Loan Documents. Trust owns no
property, real, personal or mixed, other than the Property. Trust has
no employees. Sonesta of Massachusetts is a duly organized, validly
existing Massachusetts corporation and has all requisite power and authority to
conduct its business and own its property, as now conducted or owned and as
contemplated by the Loan Documents. Sonesta of Massachusetts has not
entered into any contracts with any party except those directly related to the
Hotel. The employees of Sonesta of Massachusetts are engaged only in
connection with the operation of the Property. Guarantor is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York, and is duly qualified in each jurisdiction where
required and has all requisite power and authority to conduct its business and
to own its property, as now conducted or owned, and as contemplated by the Loan
Documents.
8.11.2 Ownership and Taxpayer
Identification Numbers. All of the interest owners of
Borrower, and a description of the ownership interests and debts of Borrower
held by the same, are listed in Exhibit
B and no additional ownership interests, or rights or instruments
convertible into such ownership interests, shall be issued, nor shall any
ownership change, except for Permitted Transfers. The taxpayer
identification number(s) of Borrower members are accurately stated in Exhibit
B. All of the current members of Guarantor and a description
of the ownership interests held by the same, are listed in Exhibit
B-1.
8.11.3 Authorization. All
required entity actions and proceedings have been duly taken so as to authorize
the execution and delivery by Borrower of the Loan
Documents. Guarantor has the power and authority to execute and
deliver the Loan Documents to which it is a party and to perform its obligations
thereunder, and all such action has been duly and validly authorized by all
necessary proceedings on its part.
8.12 Valid and
Binding. Each of the Loan Documents constitute legal, valid
and binding obligations of Borrower and Guarantor, as applicable, in accordance
with the respective terms thereof, and each has been duly and validly executed
by the Borrower or Guarantor, as applicable, subject, in the case of
enforceability, to bankruptcy, insolvency and similar laws of general
application affecting the rights and remedies of creditors and, with respect to
the availability of the remedies of specific enforcement, subject to the
discretion of the court before which any proceeding therefor may be
brought.
8.13 Deferred Compensation and
ERISA. Borrower does not have any pension, profit sharing,
stock option, insurance or other arrangement or plan for employees covered by
Title IV of the Employment Retirement Security Act of 1974, as now or hereafter
amended (“ERISA”) except as may be designated to Lender in writing by Borrower,
from time to time (“ERISA Plan”). The ERISA Plan maintained by
Guarantor imposes no funding obligations or liabilities upon Borrower, and no
“Reportable Event” as defined in ERISA has occurred and is now continuing with
respect to any such ERISA Plan maintained by Guarantor. The granting
of the Loan, the performance by Borrower and Guarantor of their respective
obligations under the Loan Documents and their respective conduct of operations
do not and will not violate any provisions of ERISA with respect to any such
ERISA Plan.
8.14 No Material Change; No
Default. There has been no material adverse change in the
financial condition, business, affairs or control of Borrower or Guarantor since
the date of its last financial statements most recently delivered to the Lender
in accordance with the requirements of Section 9.2. hereof. No
Default exists under any of the Loan Documents. There is no Default
on the part of Borrower or Guarantor under this Agreement or any of the other
Loan Documents. Borrower or Guarantor have filed all required
federal, state and local tax returns and have paid all taxes due pursuant to
such returns or any assessments against Borrower, Guarantor or the
Property.
8.15 No Broker or
Finder. Neither Borrower, nor anyone on behalf thereof, has
dealt with any broker, finder or other person or entity who or which may be
entitled to a broker’s or finder’s fee, or other compensation, payable by Lender
in connection with this Loan. The Lender acknowledges that no broker,
finder or other person introduced this Loan directly to the Lender.
8.16 Flood Area; Filled Land;
Hazardous Substances. The Land is not in an “area of special flood
hazard”, as that term is defined in the National Flood Insurance Act of 1968 (as
amended and supplemented by the Flood Disaster Protection Act of
1973). No portion of the Land consists of and no portion of the
Improvements will be located on filled wetlands. Furthermore, the
Property does not contain any Hazardous Substances (other than Permitted
Substances (as that term is defined in the Environmental
Indemnity)).
8.17 Power to Carry on
Business. Each of the Borrower, the Guarantor, and their
respective managers has all requisite power and authority to own and operate its
properties and to carry on its business as now conducted and as presently
planned to be conducted.
8.18 Background Information and
Certificates. All of the factual information contained or
referred to in Section 1 of this Agreement and in the Exhibits to this Agreement
or the other Loan Documents, and in the certificates and opinions furnished to
Lender by or on behalf of Borrower in connection with the Property or the Loan,
is true, accurate and complete in all material respects, and omits no material
fact necessary to make the same not misleading.
8.19 Compliance
with Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. (a) Borrower, and to the best of Borrower’s knowledge,
after having made diligent inquiry, each person (whether a natural person or
entity of any type) owning an interest of 20% or more in Borrower, (b)
Guarantor, and (c) to the best of Borrower’s knowledge, but without inquiry,
each tenant at the Property: (i) is not currently identified on OFAC
List, and (ii) is not a person with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction, or
other prohibition of United States law, regulation, or Executive Order of the
President of the United States. Borrower has implemented procedures,
and will consistently apply those procedures throughout the term of the Loan, to
ensure the foregoing representations and warranties remain true and correct
during the term of the Loan.
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9.
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COVENANTS.
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Borrower
covenants and agrees that from the date hereof and so long as any indebtedness
remains unpaid hereunder, or any of the Loan or other obligations remains
outstanding, as follows:
9.1 Notices. Borrower
shall, with reasonable promptness, but in all events within ten (10) days after
it has actual knowledge thereof, notify Lender in writing of the occurrence of
any act, event or condition which constitutes a Default under any of the Loan
Documents. Such notification shall include a written statement of any
remedial or curative actions which Borrower proposes to undertake to cure or
remedy such Default.
9.2 Financial Statements and
Reports. Borrower shall furnish or cause to be furnished to
Lender from time to time, the following financial statements and reports and
other information, all in form, manner of presentation and substance acceptable
to Lender provided, however, once Lender has received and approved a financial
statement and report such format shall be deemed acceptable for future financial
statements or reports covering the same information:
9.2.1 Annual
Statements. Within one hundred twenty (120) days of the end of
Borrower’s and Guarantor’s fiscal years, from independent certified public
accountants approved by Lender, certified annual audited financial statements
for Guarantor (each such annual statements to be accompanied by a schedule of
indebtedness and liabilities, in accordance with GAAP, and a description of
material liens, judgments and litigation and a detailed cash flow statement),
all in reasonable detail, prepared in accordance with GAAP and including in such
audited statement of the Guarantor, the operations of the Borrower and the
status of occupancy, room reservations, leasing, the income, expenses and cash
flow and other financial information relating to the Borrower and
Property. It is agreed that the inclusion of the operations of
Borrower in the audited financial statements of the Guarantor shall satisfy the
requirement for the provision of financial statements from the
Borrower. It is acknowledged that Lender has initially approved
Caturano & Company as the accountants for the Borrower and
Guarantor.
9.2.2 Periodic
Statements. Within forty-five (45) days after the end of each
fiscal quarter of Borrower and Guarantor, a balance sheet and statement of
income of Borrower and Guarantor for such quarter certified by the chief
financial officer of Borrower and Guarantor to have been prepared in accordance
with Generally Accepted Accounting Principles to fairly present the financial
condition of Borrower and Guarantor at the close of business on the dates
thereof and the results of operations for the fiscal quarters then ended
(subject to year-end adjustments). It is agreed that the inclusion of
the operations of the Borrower in the Guarantor’s balance sheet and statement of
income shall satisfy the requirements of this Section 9.2.2 with respect to the
Borrower.
9.2.3 Compliance
Certificate. Within 45 days after the end of each calendar
quarter, Borrower shall submit a Compliance Certificate executed by the Borrower
in the form of Exhibit D;
9.2.4 Annual
Budget. Within 30 days before the end of each fiscal year of
the Borrower, Borrower shall submit to Lender a budget showing projected
expenses and revenue for the operation of the Property for the next ensuing
fiscal year.
9.2.5 Data
Requested. Within
a reasonable period of time and from time to time such other financial data or
information as Lender may reasonably request with respect to the Property,
Borrower or Guarantor including, but not limited to so-called hotel industry
STAR and PACE reports, aged receivables, aged payables, leases, budgets,
forecasts, reserves, cash flow projections, and physical condition of the
Property;
9.2.6 Lease
Notices. Concurrently with the giving thereof, and within five
(5) Business Days of receipt thereof, copies of all notices, other than routine
correspondence, given or received with respect to the Required
Leases.
9.3 Payment of Taxes and Other
Obligations. Subject to the right to contest set forth in
Section 10.1, Borrower shall duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges payable by it, or with respect to the Property, as
well as all claims or obligations for labor, materials, supplies or services
(involving an amount in excess of $50,000.00 in any instance or $100,000.00 in
the aggregate) or for borrowed funds in any amount provided, however, it shall
not be an Event of Default hereunder if any claims or charges, other than those
arising out of taxes and assessments (which shall be governed by Section 10.1),
are being contested by the Borrower and are not paid before same become overdue
as long as: (i) no liens are filed against any of the property of the Borrower
(unless bonded over as provided in Section 11.1.4) and (ii) such claims and
charges are paid within thirty (30) days of a final determination of the amount
due.
9.4 Conduct of Business;
Compliance With Law. Borrower shall engage solely in the
ownership and operation of the Property and matters related thereto, and will
not enter into any new ventures, or undertake any Investments, except as
permitted in Section 9.8, or any new business dealings, without Lender’s express
prior written consent in each instance. As an express inducement to
Lender to make and maintain the Loan, the Borrower agrees at all times prior to
payment and satisfaction of all Obligations to be and remain a Single Purpose
Entity. Borrower shall operate the Property, and conduct its affairs
in a lawful manner and in compliance with all Laws applicable thereto and all
provisions of ERISA.
9.5 Insurance.
9.5.1 In
General. Borrower shall at all times maintain in full force
and effect the insurance coverage set forth in Section 2.04 of the Mortgage and
shall cause Lender, to be designated as mortgagee/loss payee/additional insured
in accordance with the requirements set forth therein. All insurance
premiums shall be paid at least quarterly, in advance, and the Lender shall be
provided with evidence of such prepayment of insurance premiums prior to closing
and thereafter upon, or prior to, each annual renewal or replacement of such
coverages. Submission of a certificate of insurance to Lender shall
constitute Borrower’s representation and warranty that the premium for the
period of coverage shown on such certificate has been paid.
9.6 Restrictions on Liens,
Transfers and Additional Debt.
9.6.1 Prohibited
Transactions. Except for Permitted Transactions Borrower shall
not:
(i) create or
incur, or suffer to be created or incurred, or to exist, any encumbrance,
mortgage, pledge, lien, charge or other security interest of any kind upon any
of its assets of any character whether or not related to the Property, or any
portion thereof, whether now owned or hereafter acquired or upon the proceeds or
products thereof;
(ii) create or
incur any indebtedness for borrowed funds whether secured or unsecured either
directly or as a guarantor except for the Loan;
(iii) directly
or indirectly permit any sale, transfer, exchange, assignment or pledge of or
grant of any security interest in any ownership interests in
Borrower; provided however, the foregoing shall not be deemed
violated by any sale, transfer, exchange, assignment, pledge or grant of any
security interest in any ownership interest in Guarantor; or
(iv) sell,
convey, transfer or exchange any of its assets of any character whether or not
related to the Property, or any portion thereof, whether now owned or hereafter
acquired.
9.6.2 Permitted
Transactions. The term “Permitted Transactions” shall mean
Permitted Transfers, Permitted Additional Debt, Permitted Title Exceptions, and
Required Leases.
9.6.3 Permitted
Transfers. The term “Permitted Transfers” shall
mean:
(i) the
Security Documents and other agreements in favor of Lender;
(ii) transactions,
whether outright or as security, for which Lender’s prior written consent has
been obtained, which consent may be withheld, granted or granted conditionally,
subject to such protective and other conditions as Lender may require in its
sole and absolute discretion;
(iii) sales or
dispositions in the ordinary course of business of personal property or fixtures
which are suitably replaced; and
(iv) consumption
of supplies in the ordinary course.
9.6.4 Permitted Additional
Debt. The term “Permitted Additional Debt” shall
mean:
(i) transactions,
whether secured or unsecured, for which Lender’s prior written consent has been
obtained, which consent may be withheld, granted or granted conditionally
subject to such protective and other conditions as Lender may require in its
sole and absolute discretion;
(ii) indebtedness
incurred in the ordinary course of business for the leasing of equipment for the
Property;
(iii) indebtedness
incurred to third parties in the ordinary course of business for the purchase of
goods or services which are payable, without interest, in accordance with the
terms of any such agreements; and
(iv) fully
subordinated unsecured loans from owners of beneficial interest in Borrower the
proceeds of which are used solely to pay costs related to the Property so long
as the applicable creditor has entered into a subordination and standstill
agreement which is fully satisfactory to Lender in Lender’s sole and absolute
discretion.
9.6.5 Additional
Funds. All funds required for the operation of the Property in
excess of those available from ordinary cash flow of the Property shall be
provided by Borrower, or its owners, as additional equity contributions or by
Permitted Additional Debt.
9.6.6 Right To Accelerate
Loan. The Loan shall become due and payable in full, and the
Lender shall have the right to accelerate the Loan and declare an Event of
Default, at the option of Lender, upon any breach or violation of the provisions
of Section 9.6.
9.6.7 Lender’s Options.
Lender may, in lieu of accelerating the Loan, and in its sole and absolute
discretion, agree to waive compliance with the provisions of this Section 9.6 in
any instance upon compliance with such terms and conditions as the Lender may
impose, including, without limitation, the payment of a material fee and a
change in the interest rate and other terms. Except for Permitted
Transfers, the Lender may grant or withhold, or conditionally grant, its consent
to any proposed transfer that is otherwise prohibited under Section 9.6.1 in its
sole and absolute discretion. In the case of a sale or transfer with
the required prior written consent, or any such Permitted Transfer, the seller
or transferor , if Borrower, shall remain jointly and severally liable with the
purchaser or transferee for all liabilities of Borrower or its owners
hereunder.
9.7 Limits on
Distributions. The Borrower shall not guarantee to anyone
other than the Lender the obligations of any person or entity. After
an Event of Default has occurred and is continuing, Borrower shall not make any
Distributions other than a Distribution made with the prior written consent of
Lender, acting in is sole discretion.
9.8 Restrictions on
Investments. Borrower will not make or permit to exist or to
remain outstanding any Investment except an Investment in assets which
constitute the Property or investments of the proceeds of the Property and which
are in:
(i) marketable
direct or guaranteed general obligations of the United States of America which
mature within one year from the date of purchase by Borrower;
(ii) bank
deposits, certificates of deposit and banker’ s acceptances, or other
obligations in or of Lender or other banks located within and chartered by the
United States of America or a state and having assets of over $500,000,000.00;
and
(iii) personal
property and real estate acquired in the normal and ordinary course of
Borrower’s present business and in connection with the Property.
9.9 Indemnification Against
Payment of Brokers’ Fees. Borrower agrees to defend, indemnify
and save harmless Lender from and against any and all liabilities, damages,
penalties, costs, and expenses, relating in any manner to any brokerage or
finder’s fees in respect of the Loan.
9.10 Limitations On Certain
Transactions. Borrower agrees to the following
limitations:
9.10.1 No Merger or
Acquisition. Borrower shall not dissolve or liquidate, nor
merge or consolidate with or otherwise acquire all or substantially all of the
assets of any other entity. Notwithstanding the foregoing, Lender
agrees that it will not unreasonably withhold its consent to a merger or
consolidation of the Trust and Sonesta of Massachusetts provided all
documentation incident to such transaction is first submitted to Lender for
Lender’s review and Lender determines in its reasonable judgment that any such
merger or consolidation does not compromise the Value of the Property or the
Lender’s security for the Loan.
9.10.2 Contracts of a Material or
Significant Nature. Except for contracts or leases otherwise
complying with this Agreement and contracts incident to the routine operation of
the Property such as utilities, insurance and maintenance, Borrower shall not
enter into any other contracts, agreements, including, without limitation,
franchise or management agreements, without Lender’s prior written consent,
acting in its reasonable discretion; provided however, the foregoing shall not
be considered violated by execution by Borrower of a purchase and sale agreement
for the Property which contemplates a full payoff of the Loan (including any
applicable prepayment premiums) at the closing of such agreement.
9.11 Approval of Management and
Management Contract. Lender shall have the continuing right to
approve the identity of any management or leasing company operating or leasing
the Property and the terms and conditions of such contracts, which approval
shall not be unreasonably withheld, conditioned or delayed. Each such contract
will provide that the contract may be terminated immediately at the election of
Lender without penalty upon the occurrence of the earlier of (i) taking of
possession, acceptance of a deed in lieu of foreclosure, or foreclosure of the
Property by the Lender, or (ii) the appointment by a court of competent
jurisdiction of a receiver for the Property.
9.12 Deposit of Proceeds; Other
Bank Accounts. All payments of principal, interest, fees and
any other amounts due under the Note or under any of the other Loan Documents
shall be made to the Lender by wire transfer not later than 3:00 p.m. (Eastern
standard time) on the day when due in immediately available funds in lawful
money of the United States.
Upon
Lender’s request, at any time after the occurrence of a Default or Event of
Default which is continuing, all cash proceeds resulting from the operations of
Borrower and of the Property shall be deposited in one or more segregated
accounts at Lender for the purpose of insuring the continuing pledge to Lender,
and grant to Lender, of a security interest in, such
proceeds. Borrower shall not permit any of its funds to be deposited
in any other accounts unless arrangements satisfactory to Lender have been
completed to perfect Lender’s first lien pledge and security interest
therein. The foregoing is not, however, intended to apply to
distributions not prohibited under Section 9.7.
9.13 Place for
Records: Inspection. Borrower shall maintain all of its
current business records at the Property or at the head office of the Borrower
or Guarantor at the address specified at the beginning of this
Agreement. Upon reasonable notice and at reasonable times during
normal business hours prior to a Default, and at any time without prior notice
after a Default Lender shall have the right (through such agents or Lender’s
Consultants as Lender may designate) to examine Borrower’s property and make
copies of and abstracts from Borrower’s books of account, correspondence and
other records and to discuss its financial and other affairs with any of its
owners and any accountants hired by Borrower, it being agreed that Lender shall
not divulge information obtained from such examination to others except as
required by Laws and in connection with administering the Loan, enforcing its
rights and remedies under the Loan Documents and in the conduct, operation and
regulation of its banking and lending business (which may include, without
limitation, the transfer of the Loan or of participation interests
therein). Any assignee or transferee of the Loan, co-lender, or any
holder of a participation interest in the Loan shall be entitled to deal with
such information in the same manner and in connection with any subsequent
transfer of its interest in the Loan or of further participation interests
therein.
9.14 Costs and
Expenses. Borrower shall pay all out of pocket costs and
expenses (excluding salaries or wages of employees of Lender) reasonably
incurred by Lender in connection with the closing of the Loan, the enforcement
of Lender’s rights under the Loan Documents, including, without limitation,
reasonable legal fees and disbursements, appraisal fees, inspection fees, plan
review fees, travel costs, fees and out-of-pocket costs of independent engineers
and consultants and shall be evidenced by invoices received by the Lender on
account of such expenses. Borrower’s obligations to pay such costs
and expenses shall include, without limitation, all reasonable attorneys’ fees
and other costs and expenses reasonably incurred for preparing and conducting
litigation or dispute resolution arising from any breach by Borrower or
Guarantor of any covenant, warranty, representation or agreement under any one
or more of the Loan Documents.
9.15 Compliance with
Laws. Borrower shall comply in all material respects with all
Laws applicable to the Property, Borrower or Guarantor.
9.16 Indemnification. With
the exception of any claim arising out of the Lender’s gross
negligence or willful misconduct, Borrower shall at all times, both before and
after repayment of the Loan, at its sole cost and expense defend, indemnify,
exonerate and save harmless Lender and all those controlled by, controlling or
under common control with Lender and claiming by, through or under Lender
(“Indemnified Party”) against and from all damages, losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, judgments, suits,
proceedings, costs, disbursements or expenses of any kind whatsoever, including,
without limitation, reasonable attorneys’ fees and experts, fees and
disbursements, which may at any time (including, without limitation, before or
after discharge or foreclosure of the Mortgage) be imposed upon, incurred by or
asserted or awarded against the Indemnified Party and arising from or out
of:
(i) any
Hazardous Materials as provided for in the Environmental Indemnity with respect
to the Property or any other Collateral;
(ii) any
liability for damage to person or property arising out of any violation of any
Law applicable to the Property, Borrower, or both, or
(iii) any act,
omission, negligence or conduct at the Property, or arising or claimed to have
arisen, out of any act, omission, negligence or conduct of Borrower or any
contractor, sub-contractor, tenant, occupant or invitee thereof, which is in any
way related to the Property.
Notwithstanding
the foregoing, an Indemnified Party shall not be entitled to indemnification in
respect of claims arising from acts of its own gross negligence or willful
misconduct to the extent that such gross negligence or willful misconduct is
determined by the final judgment of a court of competent jurisdiction, not
subject to further appeal, in proceedings to which such Indemnified Party is a
proper party.
9.17 Leasing
Matters. Except for Required Leases, no new lease of more
than 5,000 square feet shall be entered into without the prior written consent
of the Lender which consent shall not be unreasonably withheld or
delayed.
9.18 Loan To Value Ratio; Debt
Service
9.18.1 LTV
Covenant. For the purposes of this Loan Agreement, the “Value of the Property” shall
mean $70,000,000.00 as established pursuant to an appraisal dated as of
January 8, 2010, prepared by Cushman & Wakefield (“Original Appraisal”) which has
been accepted by Lender, as such Value of the Property may hereafter be changed
either by an update to the Original Appraisal or by a new appraisal in each case
as ordered by and acceptable to Lender pursuant to the terms of this
Agreement. Lender may require an appraisal at any time when there is
a Default or continuing Event of Default hereunder, but otherwise Lender shall
not require an appraisal more frequently than once per year. The fees
and expenses of obtaining any updated appraisal shall be paid by Lender, except
if (i) an Event of Default then exists, or (ii) there is a Default by Borrower
for failing to satisfy any monetary obligation or the Debt Service Covenant
hereunder; and in the event of an occurrence under Subclause (i) or (ii), the
reasonable out-of-pocket fees and expenses incurred by Lender in obtaining an
appraisal shall be paid by Borrower. The Borrower covenants and
agrees that the “as-is” Loan-to-Value Ratio shall not be greater than 65% (the
“LTV
Covenant”).
9.18.2 Breach of LTV
Covenant/Cure. In the event that any Appraisal obtained by
Lender pursuant to the terms of this Agreement reveals an Appraised Value which
would result in a breach of the LTV Covenant, Lender shall promptly notify
Borrower. Borrower shall have the right to cure the breach of the LTV
Covenant by making a prepayment of principal under the Note sufficient to
restore the LTV Covenant. If Borrower elects so to cure, it shall
notify Lender of such election (“Borrower’s LTV Cure Notice”)
within ten (10) Business Days following receipt of Lender’s notice and shall
make the applicable prepayment within twenty (20) days after the date of
Borrower’s LTV Cure Notice. In the event Borrower disputes the
Appraised Value obtained by Lender, Borrower shall so state in Borrower’s LTV
Cure Notice, in which event the applicable prepayment amount shall be retained
by Lender in escrow pending final resolution of the Appraised
Value. If Borrower disputes Lender’s determination of Appraised
Value, Borrower and Lender shall promptly meet to discuss Borrower’s
objections. If the parties cannot agree on the Appraised Value within
ten (10) Business Days following the date of Borrower’s LTV Cure Notice, within
forty-five (45) Business Days thereafter, Borrower, at its sole cost and
expense, shall have the right to submit its own appraisal performed by a
Qualified Appraiser for Lender’s consideration. If Lender determines,
based on Borrower’s appraisal, or other information submitted by Borrower, that
Borrower’s determination of the Value of Property (i) does not result in a
breach in the LTV Covenant, the funds held by Lender shall be returned to
Borrower, or (ii) results in a lesser paydown amount being required to cure
Borrower’s LTV Covenant, the cure amount required shall be retained by Lender
and the excess refunded to Borrower. In all other events, such funds
shall be applied to the payment of the Loan. Lender’s determination
of the Value of the Property shall be made in the Lender’s reasonable judgment
acting in good faith, and in accordance with sound appraisal practice and all
bank requirements to which Lender is subject, including, without limitation,
those imposed under the Financial Institutions Reform, Recovery and Enforcement
Act of 1989. So long as Lender has acted in good faith in accordance
with the provisions of this Section 9.18.2, Lender’s determination of
the Value of the Property shall be final and shall not be subject to further
review or challenge by Borrower. In the event of any prepayment of
the Loan under this Section 9.18.2, there shall be no change in the amount
of the scheduled installment payments under the Note. The provisions
of this Section 9.18.2 shall not apply, and there shall be no cure right,
if there is any continuing Event of Default at the time of the breach of the LTV
Covenant.
9.18.3 Debt Service
Coverage. The Borrower covenants and agrees that the Debt
Service Coverage Ratio shall not at any time be less than 1.25 to 1.0 on a
trailing twelve-month basis (“Debt Service
Covenant”). Borrower’s Debt Service Covenant shall be tested
quarterly and Borrower shall provide Lender with a Compliance Certificate, in
form of Exhibit D
annexed hereto as soon as available and in any event within forty-five (45) days
after the close of each calendar quarter of Borrower’s fiscal year, and annually
together with the submission of the annual statements required pursuant to
Section 9.2.1, which shall evidence compliance with Borrower’s Debt
Service Covenant.
9.18.4 Breach of Debt Service
Covenant/Cure. In the event of an actual or projected breach
of Borrower’s Debt Service Covenant, Borrower shall have the right to cure such
breach, provided there is then no other Default or Event of Default under any of
the Loan Documents, and subject to the following:
(i) If there
is any breach of Borrower’s Debt Service Covenant, Borrower may cure such breach
by paying to Lender on the date that Borrower’s Compliance Certificate
evidencing such breach is submitted to Lender an amount equal to six (6) months’
debt service next becoming due and payable under the Note at the time of such
breach (the “Paydown
Amount”) which amount shall be applied by Lender to the payment of
principal due under the Note without any change in the scheduled installment
payments set forth in the Note. Notwithstanding the fact that
installments of principal and interest under the Note are payable quarterly, the
Paydown Amount shall be calculated based on six (6) full calendar months of
principal and interest using the 25-year amortization schedule set forth in the
Note. Borrower’s cure right set forth in this Section 9.18.4 (i) may
not be exercised more than twice during the term of the Loan. The
payment of the Paydown Amount, shall be deemed to cure the breach of Borrower’s
Debt Service Covenant for two (2) successive calendar quarters beginning with
the calendar quarter in which the breach of Borrower’s Debt Service Covenant
first occurred;
OR
(ii) If the
Debt Service Coverage Ratio falls below 1.25 to 1.0, but is greater than 1.0 to
1.0, Borrower may cure such breach by depositing with Lender the “Cure Amount.” The
Cure Amount shall be an amount which if applied to the principal balance of the
Loan outstanding at the time of Borrower’s breach of its Debt Service Covenant
assuming that the outstanding balance of the Note was then recalculated to
amortize for 25 years at the interest specified in the Note from the date of
Borrower’s breach would result in debt service payments such that a 1.25 to 1.0
Debt Service Coverage Ratio would be achieved based on the trailing twelve month
Net Operating Income the time of the breach. Provided there is then
no Default or Event of Default under any of the Loan Documents, the Cure Amount
will be returned to Borrower once a Debt Service Coverage Ratio of at least 1.25
to 1.0 has been achieved for at least two (2) consecutive calendar quarters
based on the original amortization schedule set forth in the Note, as evidenced
by Borrower’s Compliance Certificates;
(iii) In
addition, if at the time of any breach of Borrower’s Debt Service Covenant, all
or any part of the Cash Reserve has been released, Borrower’s right to cure such
breach under Section 9.18.4 (i) or Section 9.18.4 (ii) in each case shall be
conditioned on Borrower depositing with Lender an amount sufficient to restore
the Cash Reserve to the amount of Five Million Dollars
($5,000,000.00);
(iv) Nothing
contained in this Section 9.18 shall be deemed to waive any other breach or
Default under the Loan Documents or be deemed to modify the payment schedule set
forth in the Note.
9.19 Replacement
Documentation. Upon receipt of an affidavit of an officer
of Lender as to the loss, theft, destruction or mutilation of the Note or any
other security document which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon surrender and cancellation of
such Note or other security document, Borrower will issue, in lieu thereof, a
replacement Note or other security document in the same principal amount thereof
and otherwise of like tenor.
9.20 Compliance with
Anti-Terrorism, Embargo, Sanctions and Anti-Money Laundering
Laws. Borrower shall comply with all Laws relating to money
laundering, anti-terrorism, trade embargos and economic sanctions, now or
hereafter in effect. Upon Lender’s request from time to time during
the term of the Loan, Borrower shall certify in writing to Lender that
Borrower’s representations, warranties and obligations under Section 8.19 and
this Section 9.20 remain true and correct and have not been
breached. Borrower shall immediately notify Lender in writing if any
of such representations, warranties or covenants are no longer true or have been
breached or if Borrower has a reasonable basis to believe that they may no
longer be true or have been breached. In connection with such an
event, Borrower shall comply with all Legal Requirements and directives of
governmental authorities and, at Lender’s request, provide to Lender copies of
all notices, reports and other communications exchanged with, or received from,
governmental authorities relating to such an event. Borrower shall
also reimburse Lender any expenses incurred by Lender in evaluating the effect
of such an event on the Loan and Lender’s interest in the collateral for the
Loan, in obtaining any necessary license from governmental authorities as may be
necessary for Lender to enforce its rights under the Loan Documents, and in
complying with all Legal Requirements applicable to Lenders as the result of the
existence of such an event and for any penalties or fines imposed upon Lender as
a result thereof.
9.21 Cambridgeside Galleria
Garage Lease. The lease between the Trustees of Riverside
Galleria Associates Trust as landlord and the Trust as tenant dated as of
December 30, 1986, as amended (the “Cambridgeside Galleria Garage
Lease”) giving Borrower the right to park up to 150 cars in the Garage,
as defined in Cambridgeside Galleria Garage Lease is in full force and effect
with no defaults thereunder or deficiencies in the performance of obligations
thereunder and no amendment or modifications not previously approved by
Lender. All of the parties to the Cambridgeside Galleria Garage Lease
are in full compliance with their respective obligations
thereunder. Borrower shall not (i) modify the Cambridgeside Galleria
Garage Lease without Lender’s prior written consent, not to be unreasonably
withheld, or (ii) consent to, or cause the termination of, the Cambridgeside
Galleria Garage Lease without Lender’s express consent which Lender may grant or
withhold in its sole discretion.
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10.
|
SPECIAL
PROVISIONS.
|
10.1 Right to
Contest.
10.1.1 Taxes and Claims by Third
Parties. Notwithstanding the provisions of Section 9.3 which
obligate Borrower to pay taxes and other obligations to third parties when due,
it is agreed that any tax, assessment, charge, levy, claim or obligation to a
third party (expressly excluding an obligation created under the Loan Documents)
need not be paid while the validity or amount thereof shall be contested
currently, diligently and in good faith by appropriate proceedings and if
Borrower shall have adequate unencumbered (except in favor of Lender) cash
reserves with respect thereto, and provided that such contest does not create a
default by landlord under any lease assigned to Lender; and provided, further,
that Borrower shall pay all taxes, assessments, charges, levies or obligations:
(i) promptly upon the commencement of proceedings to enforce any lien which may
have attached as security therefor, unless such proceeding is stayed by proper
court order pending the outcome of such contest; and (ii) as to claims for
labor, materials or supplies, prior to the imposition of any lien on the
Property unless the lien is discharged or bonded as set forth in Section
11.1.4.
10.1.2 Laws. Borrower
may contest any claim, demand, levy or assessment under any Laws by any person
or entity if: (i) the contest is based upon a material question of
law or fact raised by Borrower in good faith; (ii) Borrower properly commences
and thereafter diligently pursues the contest; (iii) the contest will not
materially impair the ability to ultimately comply with the contested Legal
Requirement should the contest not be successful and the conduct of the contest
will not materially interfere with the ability to obligate all tenants under
Acceptable Leases to pay rent without offset; (iv) Borrower demonstrates to
Lender’s reasonable satisfaction that Borrower has the financial capability to
undertake and pay for such contest and any corrective or remedial action then or
thereafter reasonably likely to be necessary; (v) no Default exists; and (vi) if
the contest relates to Environmental Laws, the conditions set forth in the
Environmental Indemnity relating to such contests shall be
satisfied.
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11.
|
EVENTS OF
DEFAULT.
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11.1 Event of
Default. The occurrence of any one or more of the following
conditions or events shall constitute an “Event of Default.”
11.1.1 Non-payment of Interest and
Principal. Any failure by Borrower to pay, within five (5)
days of the due date, any interest, principal or other sum payable under the
Note, without any requirement of notice from Lender, except that there shall be
no grace period with respect to the payment of sums due under the Note at
Maturity.
11.1.2 Non-payment of Other
Monetary Obligations. Any failure by Borrower to pay any other
monetary sum due to Lender under this Loan Agreement or any other Loan Document,
which failure continues for five (5) Business Days following notice thereof from
Lender except that if any failure to pay any sum when due would result in (i)
the cancelation or lapse of insurance or a tax sale, or (ii) penalties in
respect of taxes or other municipal charges, then no notice or grace period
shall be required.
11.1.3 Note, Mortgage and Other
Loan Documents. An Event of Default occurs in the performance
of any term or provision of the Note, or of the Mortgage, or of any of the other
Loan Documents.
11.1.4 Financial
Status and Insolvency. Borrower (which term for purposes
of this Section 11.1.4 shall include the Guarantor) shall: (i) admit in writing
its inability to pay its debts generally as they become due; (ii) file a
petition in bankruptcy or a petition to take advantage of any insolvency act;
(iii) make an assignment for the benefit of creditors; (iv) consent to, or
acquiesce in, the appointment of a receiver, liquidator or trustee of itself or
of the whole or any substantial part of its properties or assets; (v) file a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the Federal
Bankruptcy laws or any other applicable law; (vi) have a court of competent
jurisdiction enter an order, judgment or decree appointing a receiver,
liquidator or trustee of Borrower, or of the whole or any substantial part of
the property or assets of Borrower, and such order, judgment or decree shall
remain unvacated or not set aside or unstayed for sixty (60) days; (vii) have a
petition filed against it seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the Federal
Bankruptcy laws or any other applicable law and such petition shall remain
undismissed for sixty (60) days; (viii) have, under the provisions of any other
law for the relief or aid of debtors, any court of competent jurisdiction assume
custody or control of Borrower or of the whole or any substantial part of its
property or assets and such custody or control shall remain unterminated or
unstayed for sixty (60) days; (ix) have an attachment or execution levied
against any substantial portion of the property of Borrower or against any
portion of the Collateral which is not discharged or dissolved by a bond within
sixty (60) days.
11.1.5 Liens. A
lien for the performance of work, or the supply of materials, or a notice of
contract, or an attachment, judgment, execution or levy is filed against the
Land or the Improvements and remains unsatisfied or is not discharged or
dissolved or bonded over by a bond or title indemnity satisfactory to the Lender
(or by cash collateral acceptable to Lender) for a period of thirty (30) days
after the filing thereof.
11.1.6 Breach of Representation or
Warranty. Any material representation or warranty made by
Borrower herein or in any other instrument or document relating to the Loan or
the Property shall prove to have been materially false or misleading when made,
or any warranty shall be materially breached.
11.1.7 Default Under Certain
Required Leases. Borrower defaults beyond applicable grace and
cure periods under any Required Lease of the Property and such default is not
cured within the grace period applicable thereto.
11.1.8 Insurance. As
to a failure to comply with all provisions of Section 9.5 of this Agreement,
there shall be a grace period of five (5) Business Days after written notice
from Lender, except that there shall be no notice or grace period for any breach
of Section 9.5 which would result in the cancelation or lapse of insurance
required to be carried.
11.1.9 Nonmonetary Defaults Capable
of Cure. As to nonmonetary defaults which are reasonably
capable of being cured or remedied, unless there is a specific shorter or longer
grace period provided for in this Loan Agreement or in another Loan Document,
there shall be a thirty (30) day grace period following notice from Lender or,
if such default would reasonably require more than thirty (30) days to cure or
remedy, such longer period of time not to exceed a total of ninety (90) days
from Lender’s notice as may be reasonably required so long as Borrower shall
commence reasonable actions to remedy or cure the default within thirty (30)
days following such notice and shall diligently prosecute such curative action
to completion within such ninety (90) day period. However, where
there is an emergency situation in which there is danger to person or property
such curative action shall be commenced as promptly as possible. As
to breaches of warranties and representations (other than those related to
financial information) there shall be a thirty (30) day grace period following
notice from Lender.
11.1.10 Breach of LTV or Debt
Service Covenant. Any breach of the LTV Covenant or Debt
Service Covenant which is not cured within the applicable cure periods set forth
in Section 9.18.
11.1.11 Dissolution;
Change in Business Status. Unless the written consent of
Lender is previously obtained, all or substantially all of the business assets
of Borrower or any Guarantor are sold, Borrower or any Guarantor is dissolved,
or there occurs any change in the form of business entity through which Borrower
or any Guarantor presently conducts its business or any merger or consolidation
involving Borrower or any Guarantor, or the controlling interest in Borrower
ceases to be owned by the Guarantor.
11.1.12 Conflicting
Provisions. In the event the occurrence or existence of one or
more of the preceding events or conditions results in an Event of Default under
both the Loan Agreement and another Loan Document, to the extent there is a
conflict between the notice and cure periods set forth in the Loan Agreement and
such other Loan Document regarding such Event of Default, the provisions of the
Loan Agreement shall govern.
11.2 Certain
Remedies. If an Event of Default shall occur:
11.2.1 Accelerate
Debt. Lender may declare the indebtedness evidenced by the
Note and secured by the Mortgage immediately due and payable (provided that in
the case of a voluntary petition in bankruptcy filed by Borrower or (after the
expiration of the grace period if any set forth in Section 11.1.3 above) an
involuntary petition in bankruptcy filed against Borrower, such acceleration
shall be automatic); and
11.2.2 Pursue
Remedies. Lender may pursue any and all remedies provided for
hereunder, or under any one or more of the other Loan Documents.
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12.
|
ADDITIONAL
REMEDIES.
|
12.1 Remedies. After
the occurrence of an Event of Default, whether or not the indebtedness evidenced
by the Note and secured by the Mortgage shall be due and payable or Lender shall
have instituted any foreclosure or other action for the enforcement of the
Mortgage or the Note, Lender may, in addition to any other remedies which Lender
may have hereunder or under the other Loan Documents, and not in limitation
thereof, and in Lender’s sole and absolute discretion:
12.1.1 Enter and
Perform. Enter upon the Property to perform obligations under
leases, or to operate, maintain, repair and improve the Property and employ
watchmen to protect the Property, all at the risk, cost and expense of Borrower,
consent to such entry being hereby given by Borrower;
12.1.2 Discontinue
Work. At any time discontinue any work commenced in respect of
the Property or change any course of action undertaken by it and not be bound by
any limitations or requirements of time whether set forth herein or
otherwise;
12.1.3 Exercise
Rights. Exercise the rights of Borrower under any contract or
other agreement in any way relating to the Property and take over and use all or
any part of the labor, materials, supplies and equipment contracted for by
Borrower, whether or not previously incorporated into the realty;
12.1.4 Apply Cash
Reserves. Lender may apply all or any part of the Cash Reserve
to the payment of (i) any amounts of principal or interest on the Loan; (ii) to
pay the reasonable fees and expenses of counsel for the Lender and the Lender’s
Consultant; and (iii) to pay any fees and expenses payable by Lender to protect
its security for the Loan.
12.1.5 Other
Actions. In connection with any work or action undertaken by
Lender pursuant to the provisions of the Loan Documents,
(i) engage
builders, contractors, architects, engineers and others for the purpose of
furnishing labor, materials and equipment,
(ii) pay,
settle or compromise all bills or claims which may become liens against the
property constituting the Collateral, or which have been or may be incurred in
any manner in connection with the Property or for the discharge of liens,
encumbrances or defects in the title of the Property or the
Collateral,
(iii) take or
refrain from taking such action hereunder as Lender may from time to time
determine, and
(iv) engage
marketing and leasing agents and real estate brokers to advertise, lease or,
after foreclosure or delivery of a deed in lieu of foreclosure, sell portions or
all of the Property or other Collateral, upon such terms and conditions as
Lender may in good faith determine.
12.2 Reimbursement. Except where expressly provided to
the contrary in this Agreement or any of the other Loan Documents, Borrower
shall be liable to Lender for all reasonable out of pocket sums paid or incurred
pursuant to any of the Loan Documents whether the same shall be paid or incurred
pursuant to this Section 12 or otherwise, and all payments made or liabilities
incurred by Lender hereunder of any kind whatsoever shall be paid by Borrower to
Lender upon demand with interest at the then applicable interest rate under the
Note (or at the Default Rate as provided in this Agreement or the Note if there
is then a continuing Event of Default) from the date of payment by Lender to the
date of payment to Lender and repayment of such sums with such interest shall be
secured by the applicable Security Documents.
12.3 Power of
Attorney. For the purpose of exercising the rights granted by
this Section 12.3, as well as any and all other rights and remedies of Lender,
Borrower hereby irrevocably constitutes and appoints Lender its true and lawful
attorney-in-fact, upon and following any Event of Default that is continuing, to
execute, acknowledge and deliver any instruments and to do and perform any acts
permitted hereunder or by law in the name and on behalf of
Borrower.
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13.
|
SECURITY INTEREST AND
SET-OFF.
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13.1 Security
Interest. Borrower grants to Lender, a direct and continuing
lien and security interest, as security for all of Borrower’s obligations in and
upon all deposits, balances and other sums credited by or due from Lender or
from any affiliate of Lender to Borrower including, but not limited to, any cash
collateral pledged to Lender pursuant to any provision of the Loan
Documents.
13.2 Set-Off and Debit.
(i) If any payment is not made when due under any of the Loan Documents, after
giving regard to applicable grace periods, if any, or (ii) if any Event of
Default or other event which would entitle Lender to accelerate the Loan occurs,
or (iii) at any time, whether or not any Default or Event of Default exists in
the event any attachment, trustee process, garnishment, or other levy or lien
is, or is sought to be by initiation of a court proceeding, imposed on any
property of Borrower; then, in any such event, any such deposits, balances or
other sums credited by or due from Lender or from any such affiliate of Lender
to Borrower may to the fullest extent not prohibited by applicable law at any
time or from time to time, without regard to the existence, sufficiency or
adequacy of any other collateral, and without notice or compliance with any
other condition precedent now or hereafter imposed by statute, rule of law or
otherwise, all of which are hereby waived, be set off, debited and appropriated,
and applied by Lender against any or all of Borrower’s obligations irrespective
of whether demand shall have been made and although such Obligations may be
unmatured, in such manner as Lender in its sole and absolute discretion may
determine. Within five (5) Business Days of making any such set off,
debit or appropriation and application, Lender agrees to notify Borrower
thereof, provided the failure to give such notice shall not affect the validity
of such set off, debit or appropriation and application.
13.3 Right to
Freeze. The Lender shall also have the right, at its option,
upon the occurrence of any event which would entitle the Lender to set off or
debit as set forth in Section 13.2, to freeze, block or segregate any such
deposits, balances and other sums so that Borrower may not access, control or
draw upon the same.
13.4 Additional
Rights. The rights of Lender under this Section 13.4 are
in addition to, and not in limitation of, other rights and remedies, including
other rights of set off, which Lender, may have.
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14.
|
CASUALTY AND
TAKING.
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14.1 Casualty and Obligation To
Repair. In the event of any damage or destruction to the
Property or the other Collateral by reason of fire or other hazard or casualty
(collectively, a “Casualty”), Borrower shall give immediate written notice
thereof to Lender as required pursuant to the Mortgage, and if insurance
proceeds are made available to Borrower by Lender as set forth in the Mortgage,
proceed with reasonable diligence, in full compliance with all Laws and the
other requirements of the Loan Documents, to repair, restore, rebuild or replace
the affected property (collectively, the “Repair Work”). All proceeds of
insurance shall be paid to Lender as set forth in the Mortgage and the
disposition of such proceeds shall be governed by the terms and conditions of
the Mortgage.
14.2 Taking. If
there is any condemnation for public use of the Property or of any Collateral,
the awards on account thereof shall be paid to Lender as set forth in the
Mortgage and the disposition of such proceeds shall be governed by the terms and
conditions of the Mortgage.
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15.
|
GENERAL
PROVISIONS.
|
15.1 Notices. Any
notice or other communication in connection with this Loan Agreement, the Note,
the Mortgage, or any of the other Loan Documents, shall be in writing, and (i)
deposited in the United States Mail, postage prepaid, by registered or certified
mail, or (ii) hand delivered by any commercially recognized courier service or
overnight delivery service such as Federal Express, or (iii) sent by facsimile
transmission, if a FAX Number is designated below, provided a copy is also sent
by first-class mail addressed, (iv) sent by overnight courier service providing
for delivery confirmation:
If to
Borrower:
c/o Sonesta Hotels International
Corporation
116 Huntington Avenue
Boston, Massachusetts
02116
Attention: Office
of the Treasurer
with
copies by regular mail or such hand delivery or facsimile transmission
to:
Burns & Levinson LLP
125 Summer Street
Boston, Massachusetts
02110
Attention: Norman
Spector, Esq.
If to
Lender:
RBS Citizens National
Association
28 State Street
Boston,
Massachusetts 02109
Attention: Ms. Lisa
Murray
with a copy:
Goulston
& Storrs P.C.
400
Atlantic Avenue
Boston,
MA 02110
Attention: Anne
H. Meyer, Esq.
Any such
addressee may change its address for such notices to such other address in the
United States as such addressee shall have specified by written notice given as
set forth above. All periods of notice shall be measured from the
deemed date of delivery.
A notice
shall be deemed to have been given, delivered and received for the purposes of
all Loan Documents upon the earliest of: (i) if sent by such certified or
registered mail, on the third Business Day following the date of postmark, or
(ii) if hand delivered at the specified address by such courier or overnight
delivery service, when so delivered or tendered for delivery during customary
business hours on a Business Day, or (iii) if facsimile transmission is a
permitted means of giving notice, upon receipt as evidenced by confirmation, or
(iv) if by overnight courier service, on the next Business Day after deposit
with such courier service.
15.2 Limitations
on Assignment. Borrower may not assign this Agreement or
the monies due thereunder or convey or, except for a Permitted Transaction,
encumber the Property or other Collateral or any interest therein or in Borrower
or permit to occur any assignment or encumbrance of any interest in Guarantor or
of Guarantor’s right to receive investor funds without the prior written consent
of the Lender, acting in its sole discretion, in each instance.
15.3 Further
Assurances. Borrower shall upon reasonable request from Lender
from time to time execute, seal, acknowledge and deliver such further
instruments or documents which Lender may reasonably require to better perfect
and confirm its rights and remedies hereunder, under the Note, under the
Mortgage and under each of the other Loan Documents.
15.4 Parties
Bound. The provisions of this Agreement and of each of the
other Loan Documents shall be binding upon and inure to the benefit of Borrower
and the Lender and each of their respective successors and assigns, except as
otherwise prohibited by this Agreement or any of the other Loan
Documents.
This
Agreement is a contract by and between Borrower and Lender for their mutual
benefit, and no third person shall have any right, claim or interest against
Lender or Borrower by virtue of any provision hereof.
15.5 Waivers, Extensions and
Releases. Lender may, at any time and from time to time waive any one or
more of the conditions contained herein or in any of the other Loan
Documents. Any such waiver shall be deemed to be made in pursuance
and not in modification hereof, and any such waiver in any instance, or under
any particular circumstance, shall not be considered a waiver of such condition
in any other instance or any other circumstance.
15.6 Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial.
15.6.1 Place of
Delivery. Borrower agrees to furnish to Lender at the Lender’s
office in Boston, Massachusetts all further instruments, certifications and
documents to be furnished hereunder.
15.6.2 Governing
Law. This Agreement, and each of the other Loan Documents has
been negotiated and executed in the Commonwealth of Massachusetts, and each of
the other Loan Documents shall in all respects be governed, construed, applied
and enforced in accordance with the internal laws of the Commonwealth of
Massachusetts without regard to principles of conflicts of law.
15.6.3 Consent to
Jurisdiction. Borrower hereby consents to personal
jurisdiction in any state or Federal court located within the Commonwealth of
Massachusetts.
15.6.4 JURY TRIAL
WAIVER. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON THIS LOAN AGREEMENT, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE TRANSACTIONS
CONTEMPLATED HEREBY.
15.7 Lender’s
Expenses. Whether or not the transactions contemplated by this
Agreement shall be fully consummated, Borrower shall reimburse Lender for the
reasonable out-of-pocket fees and expenses reasonably incurred by Lender in
connection herewith. Notwithstanding anything to the contrary in this
Agreement or in any of the other Loan Documents, Borrower’s obligation to
reimburse Lender for fee and expenses, whenever Borrower shall have such
obligation under this Agreement or any of the other Loan Documents, shall only
pertain to the reasonable, out-of-pocket fees and expenses actually incurred by
Lender.
15.8 Survival. All
representations, warranties, covenants and agreements of Borrower herein or in
any other Loan Document, or in any notice, certificate, or other paper delivered
by or on behalf of Borrower pursuant hereto are significant and except as may
have been updated or corrected by other information provided to the Lender by
the Borrower shall be deemed to have been relied upon by Lender notwithstanding
any investigation made by Lender or on its behalf and shall survive the delivery
of the Loan Documents and the making of the Loan and each advance pursuant
thereto. No review or approval by Lender or by Lender’s Consultants
or any of their representatives, of any plans and specifications, opinion
letters, certificates by professionals or other item of any nature shall relieve
Borrower or anyone else of any of the obligations, warranties or representations
made by or on behalf of Borrower under any one or more of the Loan
Documents.
15.9 Cumulative
Rights. All of the rights of Lender hereunder and under each
of the other Loan Documents and any other agreement now or hereafter executed in
connection herewith or therewith, shall be cumulative and may be exercised
singly, together, or in such combination as Lender may determine in its sole
good faith judgment.
15.10 Claims Against
Lender.
15.10.1 Borrower Must
Notify. The Lender shall not be in default under this
Agreement, or under any other Loan Document, unless a written notice
specifically setting forth the claim of Borrower shall have been given to Lender
within ninety (90) days after Borrower first had actual knowledge or actual
notice of the occurrence of the event which Borrower alleges gave rise to such
claim and the Lender does not remedy or cure the default, if any there be, with
reasonable promptness thereafter. Such actual knowledge or actual
notice shall refer to what was actually known by, or expressed in a written
notification furnished to, any of the persons or officials referred to in
Exhibit C as Authorized Representatives.
15.10.2 Remedies. If
it is determined by the final order of a court of competent jurisdiction, which
is not subject to further appeal, that Lender has breached any of its
obligations under the Loan Documents and has not remedied or cured the same with
reasonable promptness following notice thereof, Lender’s responsibilities shall
be limited to: (i) where the breach consists of the failure to grant consent or
give approval in violation of the terms and requirements of a Loan Document, the
obligation to grant such consent or give such approval and to pay Borrower’s
reasonable costs and expenses including, without limitation, reasonable
attorneys, fees and disbursements in connection with such court proceedings; and
(ii) in the case of any such failure to grant such consent or give such
approval, or in the case of any other such default by Lender, where it is also
so determined that Lender acted in bad faith, or that Lender’s default
constituted gross negligence or willful misconduct, the payment of any actual,
direct, compensatory damages sustained by Borrower as a result thereof plus
Borrower’s reasonable costs and expenses, including, without limitation,
reasonable attorneys’ fees and disbursements in connection with such court
proceedings.
15.10.3 Limitations. In no event, however, shall Lender be
liable to Borrower or anyone else for other damages such as, but not limited to,
indirect, speculative or punitive damages whatever the nature of the breach by
Lender of its obligations under this Loan Agreement or under any of the other
Loan Documents. In no event shall Lender be liable to Borrower or
anyone else unless a written notice specifically setting forth the claim of
Borrower shall have been given to Lender within the time period specified
above.
15.11 Obligations
Absolute. Except to the extent prohibited by applicable law
which cannot be waived, the Obligations of Borrower under the Loan Documents
shall be absolute, unconditional and irrevocable and shall be paid strictly in
accordance with the terms of the Loan Documents under all circumstances
whatsoever, including, without limitation, the existence of any claim, set off,
defense or other right which Borrower may have at any time against Lender
whether in connection with the Loan or any unrelated transaction.
15.12 Table of Contents, Title and
Headings. Any Table of Contents, the titles and the headings
of sections are not parts of this Loan Agreement or any other Loan Document and
shall not be deemed to affect the meaning or construction of any of their
provisions.
15.13 Counterparts. This
Loan Agreement may be executed in several counterparts, each of which when
executed and delivered is an original, but all of which together shall
constitute one instrument. In making proof of this agreement, it
shall not be necessary to produce or account for more than one such counterpart
which is executed by the party against whom enforcement of such loan agreement
is sought.
15.14 Satisfaction of Term
Sheet. The funding of the entire Loan being made pursuant to
the terms hereof and of the other Loan Documents is being made in satisfaction
of Lender’s obligations under the Term Sheet dated December 14, 2009 (the
“Term Sheet”). The terms, provisions and conditions of this Agreement
and the other Loan Documents supersede the provisions of the Term
Sheet.
15.15 Participations. At
any time and from time to time and without Borrower’s or Guarantor’s consent,
the Lender (and any Bank) may sell participations to one or more banks or other
entities in all or a portion of the Lender's (or Bank’s) rights and obligations
under this Agreement and the other Loan Documents; provided that (a) any such
sale of participations shall not affect the rights and duties of the Lender (or
Bank) hereunder to the Borrower and (b) the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be the right to approve
waivers, amendments or modifications that would reduce the principal of or the
interest rate on the Loan, extend the term or increase the amount of the Loan or
extend any regularly scheduled payment date for principal or
interest.
15.16 Assignments. The
Lender may, in the ordinary course of its commercial banking business and in
accordance with applicable Law, at any time assign the Loan, the Note and its
rights and obligations under this Agreement and the other Loan Documents to any
Qualified Assignee.
15.17 Time Of the
Essence. Time is of the essence of each provision of this
Agreement and each other Loan Document.
15.18 No Oral
Change. This Loan Agreement and each of the other Loan
Documents may only be amended, terminated, extended or otherwise modified by a
writing signed by the party against which enforcement is sought (except no such
writing shall be required for any party which, pursuant to a specific provision
of any Loan Document, is required to be bound by changes without such party’s
assent). In no event shall any oral agreements, promises, actions, inactions,
knowledge, course of conduct, course of dealings or the like be effective to
amend, terminate, extend or otherwise modify this Loan Agreement or any of the
other Loan Documents.
15.19 Statements. While Lender may issue invoices or
other statements on a quarterly or other periodic basis (a “Statement”), it is
expressly acknowledged and agreed that: (i) the failure of Lender to issue any
Statement on one or more occasions shall not affect Borrower’s obligations to
make payments under the Loan Documents as and when due; (ii) the inaccuracy of
any Statement shall not be binding upon Lender and so Borrower shall always
remain obligated to pay the full amount(s) required under the Loan Documents as
and when due notwithstanding any provision to the contrary contained in any
Statement provided, however, it shall not be an Event of Default hereunder if
such Statement is inaccurate and Borrower makes payment in accordance thereof as
long as Borrower upon receipt of a corrected Statement makes payment in
accordance with such corrected Statement; (iii) all Statements are issued for
information purposes only and shall never constitute any type of offer,
acceptance, modification, or waiver of the Loan Documents or any of Lender’s
rights or remedies thereunder; and (iv) in no event shall any Statement serve as
the basis for, or a component of, any course of dealing, course of conduct, or
trade practice which would modify, alter, or otherwise affect the express
written terms of the Loan Documents.
[REMAINDER OF PAGE
INTENTIONALLY BLANK]
IN
WITNESS WHEREOF this Agreement has been duly executed and delivered as a sealed
instrument at Boston, Massachusetts this 12th day of
February, 2010.
BORROWER:
/s/ Peter J.
Sonnabend
Peter J.
Sonnabend, as Trustee of Charterhouse of Cambridge Trust, and not
individually
/s/ Boy A.J. van
Riel
Boy A. J.
van Riel, as Trustee of Charterhouse of Cambridge Trust, and not
individually
SONESTA
OF MASSACHUSETTS, INCORPORATED
By: /s/ Peter J.
Sonnabend
Peter J.
Sonnabend
Its Vice
President
Hereunto
duly authorized
LENDER:
RBS
CITIZENS, NATIONAL ASSOCIATION
By: /s/ Lisa R.
Murray
Name:
Lisa R. Murray
Title: Senior
Vice President
EXHIBITS
|
Section
Reference
Number
|
||
|
Exhibit
A
|
Definitions
|
1.1
|
|
Exhibit
B
|
Ownership
Interests and Taxpayer Identification Numbers - Borrower
|
8.10.2
|
|
Exhibit
B-1
|
Ownership
Interests - Guarantor
|
8.10.2
|
|
Exhibit
C
|
Authorized
Representatives
|
4
and 15.9.1
|
|
Exhibit
D
|
Form
of Borrower’s Compliance Certificate
|
9.18.2
|
EXHIBIT A TO LOAN
AGREEMENT
DEFINITIONS
Agreement as defined
in the Preamble.
Appraisal shall mean
an appraisal of the “as-is” or “as stabilized”, as indicated value of the
Property determined on a fair market value basis, performed by an independent
MAI Qualified Appraiser selected by the Lender who is not employed by the
Borrower or the Lender, the form of such Appraisal and the identity of the
appraiser to be acceptable to the Lender.
Appraised Value shall
mean the “as is” or “as stabilized”, as indicated fair market value of the
Property determined by the Lender’s appraisal division in its reasonable
judgment based upon the most recent Appraisal or Lender valuation obtained
pursuant to the terms hereof, as the same may be adjusted by the Lender’s
internal appraisal department consistent with the Lender’s
procedures.
Authorized
Representatives as defined in Section 4. and listed on Exhibit
C.
Borrower as defined
in the Preamble.
Business Day shall
mean: any day of the year on which offices of RBS Citizens Bank
National Association are not required or authorized by law to be closed for
business in Boston, Massachusetts. If any day on which a payment is
due is not a Business Day, then the payment shall be due on the next day
following which is a Business Day. Further, if there is no
corresponding day for a payment in the given calendar month (i.e., there is no
“February 30th”), the payment shall be due on the last Business Day of the
calendar month.
Cambridgeside Galleria
Garage Lease as defined in Section 9.21.
Cash Collateral
Account Borrower’s Account No. 1315927125 on deposit with
Lender.
Cash Reserve as
defined in Section 7.21.
Casualty as defined
in Section 14.1.
Collateral as defined
in Section 7.5.
Debt Service shall
mean for the applicable period of determination the sum of (a) total
interest expense of the Borrower with respect to the Loan for such period and
(b) scheduled principal payments with respect to the Loan for such period
as shown on the Schedule of Payments attached to the Note.
Debt Service Coverage
Ratio shall mean the ratio for the trailing twelve month period
determined at the end of each calendar quarter (e.g., March 31),
June 30, September 30 and December 31) of: (A) Net Operating
Income to (B) Debt Service on the Loan.
Default shall mean
any fact or circumstance which upon the giving of notice or passage of time or
both would constitute an Event of Default.
Distribution. Whether
done directly or indirectly, the (i) declaration or payment of any dividend,
(ii) distribution of cash or other property, (iii) purchase, redemption, or
other retirement, (iv) making of or repayment of any loan to any party holding
an interest in Borrower, or (iv) other distribution, in each case, of, on or in
respect of any shares of any class of capital stock, partnership interests, or
other beneficial or ownership interests of the Borrower.
Dollars shall mean
lawful money of the United States.
Environmental
Indemnity as defined in Section 3.1.4.
Environmental Laws as
defined in the Environmental Indemnity.
ERISA and ERISA Plan each as
defined in Section 8.12.
Event of Default as
defined in Section 11.1.
Expenses. For
the applicable period of determination, and without duplication, all ordinary
and necessary costs and expenses actually incurred by the Borrower in connection
with the ownership and operation of the Property, including ordinary and
necessary maintenance and repair expenses, real estate taxes, insurance
premiums, payments to utility companies, and management fees, marketing fees and
capital reserves. For purposes of calculating NOI, management and
marketing fees in the aggregate shall be deemed to be three percent (3%) of
Gross Receipts, and capital reserves shall be deemed to be three percent (3%) of
Gross Receipts.
Notwithstanding
the foregoing, the following shall not be included in Expenses: (i)
Debt Service; (ii) any costs or expenses paid from reserve accounts; (iii)
non-cash expenses such as depreciation; (iv) the cost of any item required to be
capitalized under GAAP; (v) any income, franchise, corporate excise or similar
taxes; (vi) any expenses for which the Borrower receives reimbursement from
sources not included in Gross Receipts, such as proceeds of insurance and
condemnation awards; and (vii) ordinary and necessary expenses for tenant
improvements and leasing commissions under Leases approved by
Lender.
Garage Management
Contract as defined in Section 8.5.
Generally Accepted
Accounting Principles (GAAP). Principles that are (a) consistent with the
principles promulgated or adopted by the Financial Accounting Standards Board
and its predecessors, as in effect from time to time and (b) consistently
applied with past financial statements of the Borrower adopting the same
principles; provided that a certified public accountant would, insofar as the
use of such accounting principles is pertinent, be in a position to deliver an
unqualified opinion (other than a qualification regarding changes in generally
accepted accounting principles) as to financial statements in which such
principles have been properly applied.
Governmental
Authority shall mean any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
Gross
Receipts. For the applicable period of determination and
without duplication, all income, revenues, proceeds, and cash receipts received
by or on behalf of the Borrower arising out of or relating to the ownership,
rental, use or operation of the Property or any part thereof, including the
following: the gross rental income received from the rental of any
part of the Property; interest received from any reserve or escrow accounts
relating to the Property; reimbursements received from tenants at the Property
and real estate tax abatements. Security deposits received by
Borrower from tenants at the Property shall be included in Gross Receipts as and
when applied by Borrower in connection with a breach or default by said
tenant. In any event, proceeds of any insurance proceeds and eminent
domain awards and any other extraordinary receipt of funds under circumstances
that would be deemed a capital transaction under GAAP shall not be included in
Gross Receipts.
Guarantor as defined
in Section 3.1.6.
Guaranty as defined
in Section 3.1.6.
Hazardous Materials
as defined in the Environmental Indemnity.
Improvements as
defined in Section 1.3.
Indemnified Party as
defined in Section 9.16.
Initial Advance as
defined in Section 2.1.
Initial Term as
defined in Section 2.3.
Interest Rate
Agreement. The interest rate protection product purchased by
the Borrower in form and substance satisfactory to the Lender, which shall
contain a cap with a counterparty acceptable to the Lender which caps the LIBOR
Rate (as defined in the Note) over the five (5) year Term to a maximum of three
and five-hundredths percent (3.05%).
Interest Rate
Assignment as defined in Section 3.1.5.
Investment shall mean
the acquisition of any real or tangible personal property or of any stock or
other security, any loan, advance, bank deposit, money market fund, contribution
to capital, extension of credit (except for accounts receivable arising in the
ordinary course of business and payable in accordance with customary terms) , or
purchase or commitment or option to purchase or otherwise acquire real estate or
tangible personal property or stock or other securities of any party or any part
of the business or assets comprising such business, or any part
thereof.
Land as defined in
Section 1.3.
Law shall mean any
law (including common law), constitution, statute, treaty, regulation, rule,
ordinance, policy, order, injunction, writ, decree or award of, or any permit,
approval or license granted by, any Governmental Authority, now or hereafter in
effect, including without limitation those relating to zoning, subdivision,
Hazardous Substances, building, health or safety, fire protection, accessibility
to, usability by or discrimination against disabled individuals, or
environmental matters.
Lender as
defined in the Preamble.
Lender’s Consultants
as defined in Section 5.1.
Licenses and Permits
shall mean all licenses, permits, authorizations and agreements issued by
or agreed to by any governmental authority, or by a private party pursuant to a
Permitted Title Exception, and including, but not limited to, building permits,
occupancy permits and such special permits, variances and other relief as may be
required pursuant to Laws which may be applicable to the Property.
Liquor License shall
mean that license issued by the City of Cambridge License Commission to Sonesta
of Massachusetts on December 17, 2009, as the same may be renewed, replaced
or extended.
Loan as defined in
Section 1.4.
Loan Agreement as
defined in the Preamble.
Loan Documents as
defined in Section 3.2.
Loan Fees as referred
to in the Term Sheet.
Loan To Value Ratio
or LTV
Ratio. At the closing of the Loan and annually thereafter the
ratio obtained by dividing: (i) the outstanding principal balance of the Loan,
by (ii) the Appraised Value of the Property, expressed as a
percentage.
LTV Covenant as
defined in Section 9.18.1.
MAI shall mean Member
of the Appraisal Institute.
Maturity shall mean
the Maturity Date, or, if the Maturity Date has been extended pursuant to the
provisions of the Loan Agreement, the Extended Maturity Date, or in any
instance, upon acceleration of the Loan, if the Loan has been accelerated by
Lender upon an Event of Default.
Maturity Date as
defined in Section 2.3.
Mortgage as defined
in Section 3.1.1.
Net Operating Income (or
NOI) shall mean, for any period of determination, the amount by which the
Gross Receipts of Borrower exceed the Expenses of Borrower.
Note as defined in
Section 3.2.
Obligations as
defined in Section 3.1.
OFAC List shall mean
the list of specially designated nationals and blocked persons subject to
financial sanctions that is maintained by the U.S. Treasury Department, Office
of Foreign Assets Control and any other similar list maintained by the U.S.
Treasury Department, Office of Foreign Assets Control pursuant to any
Requirements of Law, including, without limitation, trade embargo, economic
sanctions, or other prohibitions imposed by Executive Order of the President of
the United States. The OFAC List currently is accessible through the
internet website www.treas.gov.
Original Appraisal as
defined in Section 9.18.1.
Permitted Additional
Debt as defined in Section 9.6.4.
Permitted
Encumbrances as defined in the Mortgage.
Permitted
Transactions as defined in Section 9.6.2.
Permitted Transfers
as defined in Section 9.6.3.
Prime Rate as defined
in the Note.
Property as defined
in Section 1.3.
Qualified Appraiser
shall mean a reputable independent MAI appraiser with at least five (5) years’
experience in appraising commercial properties and/or hotels in the metropolitan
Boston area of the caliber, as of the date hereof, of Cushman and Wakefield,
CBRE, McCall and Almy (by way of example).
Qualified Assignee
shall mean any commercial bank, savings bank, savings and loan
association or similar financial institution, any life insurance company, any
institutional investor or any other entity which is engaged in the business of
lending money and extending credit, and buying loans or participations in loans
under credit facilities substantially similar to those extended under this
Agreement.
Repair Work as
defined in Section 14.1.
Reportable Event as
defined in Section 8.12.
Required Lease (s)
means any lease which Lender in its reasonable discretion deems necessary
or advisable for the continued operation of the Property in the manner
contemplated by this Agreement. As of the date of this Agreement, the
only Required Lease is the lease to Altruista LLC, d/b/a Dantes dated
October 31, 2005.
Security as defined
in Section 3.1.
Security Documents as
defined in Section 3.2.
Single Purpose Entity
means a corporation or a Massachusetts business trust which, at all times since
its formation and thereafter, (a) was organized solely for the purpose of
owning and operating the Property and matters related thereto, (b) has not
and will not engage in any business unrelated to the ownership and operation of
the Property, (c) has not and will not have any assets other than those
related to the Property, (d) except as otherwise expressly permitted by the
Loan Documents has not and will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation, merger, asset sale,
transfer of interests, or amendment of its declaration of trust, articles of
incorporation or bylaws, (e) has not and will not fail to correct any known
misunderstanding regarding the separate identity of such entity, (f) has
not done and will not do any of the following: (I) file a
bankruptcy, insolvency or reorganization petition or otherwise seek any relief
under any laws relating to the relief from debts or the protection of debtors
generally; (II) seek or consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian or any similar official for such entity
or all or any portion of such entity’s properties; (III) make any
assignment for the benefit of such entity’s creditors’ or (IV) take any
action that might cause such entity to become insolvent, (g) has maintained
and will maintain its accounts, books and records separate from any other person
or entity, (h) has not and will not commingle its funds or assets with
those of any other entity, (i) has held and will hold its assets in its own
name, (j) has conducted and will conduct its business in its name
(k) has paid and will pay its liabilities, including salaries of any
employees, out of its own funds and assets, (l) has observed and will
observe all corporate and trust formalities, (m) intentionally omitted,
(n) has no indebtedness other than as expressly permitted under the Loan
Documents, (o) has not and will not assume or guarantee or become obligated
for the debts of any other entity or person, or hold out its credit as being
available to satisfy the obligations of any other entity or person,
(q) will not acquire obligations or securities of its members, (p) has
established and maintains an office through which it conducts its business
separate and apart from that of any of its Affiliates or has allocated and will
allocate fairly and reasonably shared expenses, including, without limitation,
shared office space and uses separate stationary, invoices and checks,
(q) has not and will not pledge its assets for the benefit of any other
person or entity, (r) has held and identified itself and will hold itself
out and identify itself as a separate and distinct entity under its own name and
not as a division or part of any other person or entity, (s) has not made
and will not make loans to any person or entity, (t) has not and will not
identify any of its beneficiaries or shareholders or any Affiliates of any of
them as a division or part of it, (u) has not entered and will not enter
into or be a party to, any transaction with its beneficiary, shareholders or its
Affiliates (including the managing member) except in the ordinary course of
its business and on terms which are intrinsically fair and are not less
favorable to it than would be obtained in a comparable arms-length transaction
with an unrelated third party, (v) has paid and will pay the salaries of
its own employees from its own funds, (w) has maintained and will maintain
adequate capital in light of its contemplated business operation and (x) if
such entity is a trust, and such entity has one or more trustees, then such
entity’s organizational documents shall provide that such entity shall continue
(and not dissolve) for so long as a trustee exists.
Statement as defined
in Section 15.19.
SNDA as defined in
Section 7.19.
Surveyor and Survey Plan each as
defined in Section 1.3.
Term Sheet shall mean
that certain Term Sheet by and between Lender and Borrower, dated as of
December 14, 2009.
UCC means the Uniform
Commercial Code in effect in the jurisdiction where the Property is
situated.
EXHIBIT C TO LOAN
AGREEMENT
AUTHORIZED
REPRESENTATIVES
Charterhouse
of Cambridge Trust
Peter J.
Sonnabend, Trustee
Boy A. J.
van Riel, Trustee
Sonesta
of Massachusetts, Incorporated
Peter J.
Sonnabend, Secretary
Boy A. J.
van Riel, Treasurer
EXHIBIT D TO LOAN
AGREEMENT
FORM OF COMPLIANCE
CERTIFICATE
COMPLIANCE
CERTIFICATE
Peter J. Sonnabend and Boy A.J. van
Riel, as Trustees of the Charthouse of Cambridge Trust and Sonesta of
Massachusetts Incorporated (collectively "Borrower") hereby certifies to RBS
Citizens National Association (“Lender”), pursuant to the Loan Agreement between
Borrower and Lender dated February ____, 2010 as may be amended from time to
time ("Loan Agreement"), that:
1. Capitalized
terms not defined herein shall have the meanings set forth in the Loan
Agreement.
2. The
Borrower has complied with all the terms, covenants and conditions to be
performed or observed by the Borrower contained in the Loan Agreement and other
documents required to be executed by the Borrower in connection with the Loan
Agreement.
3. On
the date hereof there does not exist an Event of Default or an event which would
with notice or the lapse of time, or both, constitute an Event of
Default.
4. The
representations and warranties contained in the Loan Agreement and in any
certificate, document or financial or other statement furnished at any time
thereunder are true, correct and complete in all material respects with the same
effect as though such representations and warranties had been made on the date
hereof, except to the extent that any such representation and warranty relates
solely to an earlier date (in which case such representation and warranty shall
be true, correct and complete on and as of such earlier date).
5. Borrower
hereby certifies as follows that the financial statements attached hereto which
are required to be delivered to Lender pursuant to Section 9.2 of the Loan
Agreement are true, accurate and complete in all material respects as of the
date hereof.
6. Borrower
is in compliance with all applicable covenants contained in the Loan Agreement
including, without limitation, the Debt Service Coverage Ratio which is not less
than 1.25 to 1.0 on a trailing 12 month basis, for the period ending
_________________, 20__, calculated as follows:
(i) Gross
Receipts $____________________
minus
(ii) Expenses $____________________
equals
(iii) Net
Operating
Income $____________________
(iv) Debt
Service $____________________
(v) Debt
Service Coverage Ratio is:___________________
Complies: _____
yes _____ no
IN
WITNESS WHEREOF, the undersigned, a duly authorized officer of Borrower, has
executed and delivered this Certificate in the name and on behalf of the
Borrower on _____________________, 20_____.
BORROWER:
___________________________________
Authorized
Representative
Hereunto
duly authorized
D-2