Attached files
| file | filename |
|---|---|
| EX-10.26 - EXHIBIT 10.26 - SONESTA INTERNATIONAL HOTELS CORP | exhibit10_26.htm |
| 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 |
| 8-K - SONESTA INTERNATIONAL HOTELS 8-K 2-18-2010 - SONESTA INTERNATIONAL HOTELS CORP | form8-k.htm |
EXHIBIT
10.27
PROMISSORY
NOTE
$32,000,000.00 Boston,
Massachusetts
February 12,
2010
1.Promise To
Pay.
FOR VALUE
RECEIVED, 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, both having an address c/o Sonesta International
Hotels Corporation, 116 Huntington Avenue, Boston, Massachusetts 02116
(jointly and severally, “Borrower”), promises to pay to
the order of RBS CITIZENS, NATIONAL ASSOCIATION, a national banking association,
having an address at 28 State Street, Boston, Massachusetts 02109 (“Lender”; which term shall
include any future owner and holder of this Note), the principal sum of
THIRTY-TWO MILLION DOLLARS ($32,000,000.00), with interest thereon, or on the
amount thereof from time to time outstanding, to be computed, as hereinafter
provided, on each advance from the date of its disbursement until such principal
sum shall be fully paid. Interest and principal shall be payable in
installments as set forth in Section 4 below. The total principal
sum, or the amount thereof outstanding, together with any accrued but unpaid
interest, shall be due and payable in full on March 1, 2015 (“Maturity Date”), which term is
further defined in, and is subject to acceleration in accordance with, the Loan
Agreement pursuant to which this Note has been issued.
2.Loan
Agreement.
This Note
is issued pursuant to the terms, provisions and conditions of an agreement
captioned “Term Loan Agreement” dated as of even date between Borrower and
Lender (the “Loan
Agreement”) and evidences the Loan made pursuant
thereto. Capitalized terms used herein which are not otherwise
specifically defined shall have the same meaning herein as in the Loan
Agreement.
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3.Interest
Rates.
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3.1. Interest
Provisions. Interest on the outstanding principal amount of
the Loan when classified as a: (i) LIBOR Rate Loan shall accrue
during each LIBOR Interest Period at a rate equal to the sum of the Adjusted
LIBOR Rate for such Interest Period plus the LIBOR Rate Margin and shall be due
and payable on each Interest Payment Date and on the Maturity Date, and (ii)
Prime Rate Loan shall accrue during each Interest Period at a rate equal to the
Prime Rate and be payable on each Interest Payment Date and on the Maturity
Date.
3.2. Funding
of Loan. On the
Funding Date and on terms and subject to the conditions of this Note, the Loan
shall be made available to the Borrower no later than 11:00 a.m. New York time
by a deposit to the Account (or as otherwise instructed by the Borrower in
writing) in the full principal amount of the Loan. Unless otherwise prohibited
by this agreement, the Loan shall initially be classified as a LIBOR Rate
Loan. Except only for the Stub Period, as defined below, during the
term of this Note, no portion of the Loan shall be a Prime Rate Loan, unless a
LIBOR Rate Loan is unavailable.
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4.Payment of Interest and Principal. |
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4.1. Payment of
Interest. All accrued interest shall be payable in arrears on
each applicable Interest Payment Date and at Maturity. Each change in
the Prime Rate shall simultaneously change the Prime Rate payable under this
Note.
4.2. Repayment of Loan; Automatic
Rollover of LIBOR Rate Loan. During the period(s) the Loan is
classified as a LIBOR Rate Loan, it shall become payable in full
on each Interest Payment Date; provided, however, such Loan
shall automatically be continued as a LIBOR Rate Loan with an equal Interest
Period in an amount equal to the expiring LIBOR Rate Loan LESS the applicable
Principal Repayment Amount, provided, further,
however, that no portion of the outstanding principal amount of a LIBOR
Rate Loan may be so continued as a LIBOR Rate Loan when any Default or Event of
Default has occurred and is continuing. If any Default or Event of Default has
occurred and is continuing (if the Lender does not otherwise elect to exercise
any right to accelerate the Loan it is granted hereunder), the maturing LIBOR
Rate Loan shall automatically be continued as a Prime Rate Loan, as
aforesaid. During the period(s) that the Loan is classified as a
Prime Rate Loan, the Borrower shall make regular payments of principal in
amounts equal to the applicable Principal Repayment Amount on each Interest
Payment Date. Notwithstanding the foregoing, the Loan shall mature
and become payable in full upon Maturity. Principal shall be
repayable in the amount of the Principal Repayment Amount commencing June 1,
2010 and continuing on the first Business Day of each calendar quarter
thereafter. For the purposes of this Note, calendar quarters shall
mean each three (3) calendar month period beginning on March 1, June 1,
September 1 and December 1 of each year.
4.3. Prepayment. A
Prime Rate Loan or any portion thereof may be prepaid in full or in part at any
time upon fifteen (15) days' prior written notice to the holder of this Note
without premium or penalty. Prepayment of a Libor Rate Loan is
subject to applicable provisions of Sections 4.10 and 4.11
hereof. Any partial prepayment of principal shall first be applied to
any installment of principal then due and then be applied to the principal due
in the reverse order of maturity, and no such partial prepayment shall relieve
Borrower of the obligation to pay each subsequent installment of principal
payment when due.
4.4. Maturity. At
Maturity all accrued interest, principal and other charges due with respect to
the Loan shall be due and payable in full and the principal balance and such
other charges, but not unpaid interest, shall continue to bear interest at the
Default Rate until so paid.
4.5. Method of Payment; Date of
Credit. All payments of interest, principal and fees shall be
made in immediately available funds, without counterclaim or set off and free
and clear of, and without any deduction or withholding for, any taxes or other
payments: (a) by direct charge to an account of Borrower maintained
with Lender (or the then holder of the Loan), or (b) by wire transfer to Lender,
or (c) by check payable to Lender and delivered to Lender at 28 State
Street, Boston, Massachusetts 02109, or (d) to such other bank or address as the
holder of the Loan may designate in a written notice to
Borrower. Payments shall be credited on the Business Day on which
immediately available funds are received prior to one o'clock P.M. Eastern Time;
payments received after one o'clock P.M. Eastern Time shall be credited to the
Loan on the next Business Day. Payments which are by check, which
Lender may at its option accept or reject, or which are not in the form of
immediately available funds shall not be credited to the Loan until such funds
become immediately available to Lender, and, with respect to payments by check,
such credit shall be provisional until the item is finally paid by the payor
bank.
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4.6. Billings. Lender
may submit monthly billings reflecting payments due; however, any changes
in the interest rate which occur between the date of billing and the due date
may be reflected in the billing for a subsequent month. Neither the
failure of Lender to submit a billing nor any error in any such billing shall
excuse Borrower from the obligation to make full payment of all Borrower's
payment obligations when due.
4.7. Application
of Payments. All
payments shall be applied first to the payment of all fees, expenses and other
amounts due to the Lender (other than principal and interest), then to accrued
interest, and thereafter to outstanding principal; provided, however, after the
occurrence of any Default which is continuing or any Event of Default, payments
will be applied to the Obligations of Borrower in such order and manner as
Lender determines in its sole discretion.
4.8. Default
Rate. Lender shall have the option of imposing, and Borrower
shall pay upon billing therefor, an interest rate which is five percent (5%) per
annum above the interest rate otherwise payable ("Default Rate"): (a)
while any monetary Default exists and is continuing, during that period between
the due date and the date of payment; (b) following any Event of Default that is
continuing, unless and until the Event of Default is waived by Lender; and (c)
after Maturity.
4.9. Late
Charges. Borrower shall pay, upon billing therefor, a
"Late Charge" equal to five percent (5%) of the amount of any payment of
principal, other than principal due at Maturity, interest, or both, which is not
paid within ten (10) days of the due date thereof. Late charges
are: (a) payable in addition to, and not in limitation of, the
Default Rate, (b) intended to compensate Lender for administrative and
processing costs incident to late payments, (c) are not interest, and (d) shall
not be subject to refund or rebate or credited against any other amount
due.
4.10. Voluntary Prepayment of the
Libor Rate Loan.
(A) When
classified as a LIBOR Rate Loan, the Loan may be prepaid upon the terms and
conditions set forth herein. The Borrower acknowledges that
additional obligations may be associated with any such prepayment under the
terms and conditions of any applicable Hedging Contracts. Borrower
shall give the Lender, no later than 10:00 a.m., New York City time, at least
four (4) Business Days notice of any proposed prepayment of the LIBOR Rate Loan,
specifying the proposed date of payment and the principal amount to be
paid. Each partial prepayment of the principal amount of the LIBOR
Rate Loan shall be in an integral multiple of $10,000.00 and accompanied by the
payment of all charges outstanding on the LIBOR Rate Loan (including the LIBOR
Breakage Fee) and of all accrued interest on the principal repaid to the date of
payment.
(B) Upon
any prepayment of a LIBOR Rate Loan on any day that is not the last day of the
relevant Interest Period (regardless of the source of such prepayment and
whether voluntary, by acceleration or otherwise), Borrower shall pay an amount
(“LIBOR Breakage Fee”),
as calculated by Lender, equal to the amount of any losses, expenses and
liabilities (including without limitation any loss of margin and anticipated
profits) that Lender may sustain as a result of such default or
payment. The Borrower understands, agrees and acknowledges that: (i)
the Lender does not have any obligation to purchase, sell and/or match funds in
connection with the use of the LIBOR Rate as a basis for calculating the rate of
interest on a LIBOR Rate Loan, (ii) the LIBOR Rate may be used merely as a
reference in determining such rate, and (iii) the Borrower has accepted the
LIBOR Rate as a reasonable and fair basis for calculating the LIBOR Breakage Fee
and other funding losses incurred by the Lender. Borrower further
agrees to pay the LIBOR Breakage Fee and other funding losses, if any, whether
or not the Lender elects to purchase, sell and/or match funds.
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(C) The
foregoing LIBOR Breakage Fee shall be payable in respect of all prepayments of
principal of a LIBOR Rate Loan whether voluntary or involuntary including,
without limitation, prepayments made upon acceleration of the Loan, or
application of insurance or eminent domain proceeds.
(D) Once
written notice of intention to prepay is given, the LIBOR Rate Loan shall become
due and payable in full on the date specified in the notice of prepayment and
the failure to so prepay the LIBOR Rate Loan on such date, together with any
applicable LIBOR Rate Loan Prepayment Fee shall constitute an Event of
Default.
(E) If
by reason of an Event of Default Lender elects to declare the LIBOR Rate Loan to
be immediately due and payable, then any LIBOR Breakage Fee, with respect
thereto shall become due and payable in the same manner as though Borrower had
exercised such right of prepayment.
4.11. Indemnities. In
addition to the LIBOR Breakage Fee, the Borrower agrees to reimburse the Lender
(without duplication) for any increase in the cost to Lender, or reduction in
the amount of any sum receivable by Lender, in respect, or as a result
of:
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(a)
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any
conversion or repayment or prepayment of the principal amount of the LIBOR
Rate Loan on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 4.10 or
otherwise;
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(b)
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any
costs associated with marking to market any Hedging Obligations that (in
the reasonable determination of the Lender) are required to be terminated
as a result of any conversion, repayment or prepayment of the principal
amount of the LIBOR Rate Loan on a date other than the scheduled last day
of the Interest Period applicable thereto, whether pursuant to Section
4.10 or otherwise;
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Lender shall promptly notify the
Borrower in writing of the occurrence of any such event, such notice to state,
in reasonable detail, the reasons therefore and the additional amount required
fully to compensate Lender for such increased cost or reduced
amount. Such additional amounts shall be payable by the Borrower to
Lender within five days of its receipt of such notice, and such notice shall, in
the absence of manifest error, be conclusive and binding on the
Borrower. The Borrower understands, agrees and acknowledges the
following: (i) Lender does not have any obligation to purchase, sell
and/or match funds in connection with the use of Libor Rate as a basis for
calculating the rate of interest on the Libor Rate Loan, (ii) the Libor Rate may
be used merely as a reference in determining such rate, and (iii) the Borrower
has accepted the Libor Rate as a reasonable and fair basis for calculating such
rate, the LIBOR Breakage Fee, and other funding losses incurred by
Lender. Borrower further agrees to pay the Libor Rate Loan Prepayment
Fee and other funding losses, if any, whether or not Lender elects to purchase,
sell and/or match funds.
5.Certain Definitions and
Provisions.
5.1. "Account" means
account # 1110419918 maintained by the Lender in the name of the
Borrower.
5.2. “Adjusted LIBOR Rate”
means, relative to a LIBOR Rate Loan, a rate per annum determined by dividing
(x) the LIBOR Rate for such Interest Period by (y) a percentage equal to one
hundred percent (100%) minus the LIBOR Reserve Percentage.
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5.3. "Business Day"
means:
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(a) any
day which is neither a Saturday or Sunday nor a legal holiday on which
commercial banks are authorized or required to be closed in Boston,
Massachusetts;
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(b) when
such term is used to describe a day on which a payment or prepayment is to
be made in respect of a LIBOR Rate Loan, any day which is: (i) neither a
Saturday or Sunday nor a legal holiday on which commercial banks are
authorized or required to be closed in New York City; and (ii) a London
Banking Day; and
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(c) when
such term is used to describe a day on which an interest rate
determination is to be made in respect of a LIBOR Rate Loan, any day which
is a London Banking Day.
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5.4. “Dollars” means lawful
money of the United States.
5.5. "Funding Date" means
the 12th day of February, 2010.
5.6. "Hedging Contracts"
means, interest rate swap agreements, interest rate cap agreements and interest
rate collar agreements, or any other agreements or arrangements entered into
between the Borrower and the Lender and designed to protect the Borrower against
fluctuations in interest rates or currency exchange rates.
5.7. "Hedging Obligations"
means, with respect to the Borrower, all liabilities of the Borrower to the
Lender under Hedging Contracts.
5.8. “Interest Payment
Date” means the first Business Day of each LIBOR Interest Period or, in
the case of Prime Rate Loans, on the first Business Day of each applicable
quarter.
5.9. “LIBOR Interest
Period” means each three (3) calendar month period commencing on June 1,
2010;
provided,
however, that
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(a)
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if
the Borrower has or may incur Hedging Obligations with the Lender in
connection with the Loan, the LIBOR Interest Period shall be of the same
duration as the relevant period set under the applicable Hedging
Contract;
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(b)
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if
such LIBOR Interest Period would otherwise end on a day which is not a
Business Day, such LIBOR Interest Period shall end on the next following
Business Day unless such day falls in the next calendar month, in which
case such LIBOR Interest Period shall end on the first preceding Business
Day; and
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(c)
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no
LIBOR Interest Period may end later than the
Maturity.
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5.10. "LIBOR Rate" means
relative to any Interest Period for a LIBOR Rate Loan, the offered rate for
deposits of U.S. Dollars in an amount approximately equal to the amount of the
LIBOR Rate Loan for a term coextensive with the Interest Period which the
British Bankers' Association fixes as its LIBOR rate as of 11:00 a.m. London
time on the day which is two London Banking Days prior to the beginning of such
Interest Period. If the Lender cannot determine such offered rate by
the British Bankers’ Association, the Lender may, in its discretion, select a
replacement index based on the arithmetic mean of the quotations, if any, of the
interbank offered rate by first class banks in London or New York for deposits
in comparable amounts and maturities.
5.11. "LIBOR Rate Loan"
means the Loan for the period(s) when the rate of interest applicable to the
Loan is calculated by reference to the LIBOR Rate in the manner set forth
herein.
5.12. “LIBOR Rate Margin”
means three and thirty-five one-hundredths percent (3.35%) per annum.
5.13. "LIBOR Reserve
Percentage" means, relative to any day of any LIBOR Interest Period for
the LIBOR Rate Loan, the maximum aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
under any regulations of the Board of Governors of the Federal Reserve System
(the "Board") or other governmental authority having jurisdiction with respect
thereto as issued from time to time and then applicable to assets or liabilities
consisting of "Eurocurrency Liabilities", as currently defined in Regulation D
of the Board, having a term approximately equal or comparable to such LIBOR
Interest Period.
5.14. “Loan” means all
amounts outstanding under this Note.
5.15. “London Banking Day”
means a day on which dealings in U.S. dollars deposits are transacted in the
London interbank market.
5.16. “Maturity” means 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.
5.17. "Note" means this
Promissory Note dated as of the 12th day of February, 2010 in the principal
amount of $32,000,000 made payable by the Borrower to the order, and for the
benefit, of the Lender.
5.18. "Prime Rate" means
the rate of interest announced by Lender in Boston, Massachusetts from time to
time as its "Prime Rate." The Borrower acknowledges that Lender may
make loans to its customers above, at or below the Prime Rate. Interest accruing
by reference to the Prime Rate shall be calculated on the basis of actual days
elapsed and a 360-day year.
5.19. "Prime Rate Loan"
means the Loan for the period(s) when the rate of interest applicable to the
Loan is calculated by reference to the Prime Rate.
5.20. "Principal Repayment
Amount" means the regularly scheduled reductions in the outstanding
principal of the Loan, to be made on each Interest Payment Date based on a
twenty-five (25) year amortization in an amount shown on Schedule 1
attached to this Note.
5.21. “Stub Period” means
the period beginning on (and including) the Funding Date and ending on (but
excluding) March 1, 2010 (the "Stub Period"). The Stub Period shall
be a Prime Rate Loan.
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6.Additional
Provisions.
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6.1. Increased Capital
Costs. If any change in, or the introduction, adoption,
effectiveness, interpretation, reinterpretation or phase-in of, any law or
regulation, directive guideline, decision or request (whether or not having the
force of law) of any court, central bank, regulator or other governmental
authority affects or would affect the amount of capital required or expected to
be maintained by Lender, or the person controlling Lender, and Lender determines
(in its sole and absolute discretion) that the rate of return on its or such
controlling person’s capital as a consequence of its commitments or the loans
made by Lender is reduced to a level below that which Lender or such controlling
person could have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by Lender to Borrower,
which notice shall include a calculation of the payment required, the Borrower
shall pay directly to Lender, within fifteen (15) days following Lender’s
notice, additional amounts sufficient to compensate Lender or such controlling
person for such reduction in rate of return. A statement of Lender as
to any such additional amount or amounts (including calculations thereof in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, Lender may use
any method of averaging and attribution that it (in its sole and absolute
discretion) shall deem applicable.
6.2. Increased
Costs. If on or after the date hereof the adoption of any
applicable law, rule or regulation or guideline (whether or not having the force
of law), or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by the Lender with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
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(a)
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shall
subject the Lender to any tax, duty or other charge with respect to the
LIBOR Rate Loan or its obligation to make the LIBOR Rate Loan, or shall
change the basis of taxation of payments to the Lender of the principal of
or interest on the LIBOR Rate Loan or any other amounts due under this
agreement in respect of the LIBOR Rate Loan or its obligation to make the
LIBOR Rate Loan (except for the introduction of, or change in the rate of,
tax on the overall net income of the Lender or franchise taxes, imposed by
the jurisdiction (or any political subdivision or taxing authority
thereof) under the laws of which the Lender is organized or in which the
Lender's principal executive office is located);
or
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(b)
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shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System of the United
States) against assets of, deposits with or for the account of, or credit
extended by, the Lender or shall impose on the Lender or on the London
interbank market any other condition affecting the LIBOR Rate Loan or its
obligation to make the LIBOR Rate
Loan;
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and the
result of any of the foregoing is to increase the cost to the Lender of making
or maintaining the Loan as a LIBOR Rate Loan, or to reduce the amount of any sum
received or receivable by the Lender under this Note with respect thereto, by an
amount deemed by the Lender to be material, then, within 15 days after demand by
the Lender, the Borrower shall pay to the Lender such additional amount or
amounts as will compensate the Lender for such increased cost or reduction.
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6.3. LIBOR Rate Lending
Unlawful. If the Lender shall determine (which determination
shall, upon notice thereof to the Borrower be conclusive and binding on the
Borrower) that the introduction of or any change in or in the interpretation of
any law, rule, regulation or guideline, (whether or not having the force of law)
makes it unlawful, or any central bank or other governmental authority asserts
that it is unlawful, for the Lender to make, continue or maintain the Loan as,
or to convert the Loan into, a LIBOR Rate Loan, then any such LIBOR Rate Loans
shall, upon such determination, forthwith be suspended until the Lender shall
notify the Borrower that the circumstances causing such suspension no longer
exist, and all LIBOR Rate Loans of such type shall automatically convert into
Prime Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law and assertion.
6.4. Unavailability of LIBOR
Rate. In the event that Borrower shall have requested a LIBOR
Rate Loan in accordance with Section 4 and Lender, in its sole discretion, shall
have determined that U.S. dollar deposits in the relevant amount and for the
relevant LIBOR Interest Period are not available to the Lender in the London
interbank market; or by reason of circumstances affecting the Lender in the
London interbank market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate applicable to the relevant LIBOR Interest Period; or
the LIBOR Rate no longer adequately and fairly reflects the Lender’s cost of
funding loans; upon notice from the Lender to the Borrower, the obligations of
the Lender under Section 4 to make or
continue any loans as, or to convert any loans into, LIBOR Rate Loans of such
duration shall forthwith be suspended until the Lender shall notify the Borrower
that the circumstances causing such suspension no longer exist, then, upon
notice from the Lender to the Borrower, the LIBOR Rate Loan shall automatically
convert to a Prime Rate Loan. During any such suspension, the Loan shall be
classified as a Prime Rate Loan.
6.5. Taxes. All
payments by the Borrower of principal of, and interest on, the LIBOR Rate Loan
and all other amounts payable hereunder shall be made free and clear of and
without deduction for any present or future income, excise, stamp or franchise
taxes and other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding franchise taxes and
taxes imposed on or measured by the Lender's net income or receipts (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will
(a) pay
directly to the relevant authority the full amount required to be so withheld or
deducted;
(b) promptly
forward to the Lender an official receipt or other documentation satisfactory to
the Lender evidencing such payment to such authority; and
(c) pay
to the Lender such additional amount or amounts as is necessary to ensure that
the net amount actually received by the Lender will equal the full amount the
Lender would have received had no such withholding or deduction been
required.
Moreover,
if any Taxes are directly asserted against the Lender with respect to any
payment received by the Lender hereunder, the Lender may pay such Taxes and the
Borrower will promptly pay such additional amount (including any penalties,
interest or expenses) as is necessary in order that the net amount received by
the Lender after the payment of such Taxes (including any Taxes on such
additional amount) shall equal the amount the Lender would have received had not
such Taxes been asserted.
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If the
Borrower fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Lender the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lender for any incremental Taxes,
interest or penalties that may become payable by the Lender as a result of any
such failure.
7.Acceleration; Event of
Default.
At the option of the holder, this Note
and the indebtedness evidenced hereby shall become immediately due and payable
without further notice or demand, and notwithstanding any prior waiver of any
breach or default, or other indulgence, upon the occurrence at any time of an
"Event of Default" under the Loan Agreement or any other Loan Document which is
continuing, or an event which pursuant to any express provision of the Loan
Agreement, or of any other Loan Document, gives Lender the right to accelerate
the Loan.
8.Certain Waivers, Consents
and Agreements.
Each and every party liable hereon or
for the indebtedness evidenced hereby whether as maker, endorser, guarantor,
surety or otherwise hereby: (a) waives presentment, demand, protest,
suretyship defenses and defenses in the nature thereof; (b) waives any defenses
based upon and specifically assents to any and all extensions and postponements
of the time for payment, changes in terms and conditions and all other
indulgences and forbearances which may be granted by the holder to any party now
or hereafter liable hereunder or for the indebtedness evidenced hereby; (c)
agrees to any substitution, exchange, release, surrender or other delivery of
any security or collateral now or hereafter held hereunder or in connection with
the Loan Agreement, or any of the other Loan Documents, and to the addition
or release of any other party or person primarily or secondarily liable; (d)
agrees that if any security or collateral given to secure this Note or the
indebtedness evidenced hereby or to secure any of the obligations set forth or
referred to in the Loan Agreement, or any of the other Loan Documents, shall be
found to be unenforceable in full or to any extent, or if Lender or any other
party shall fail to duly perfect or protect such collateral, the same shall not
relieve or release any party liable hereon or thereon nor vitiate any other
security or collateral given for any obligations evidenced hereby or thereby;
(e) agrees to pay all reasonable out-of-pocket costs and expenses incurred by
Lender or any other holder of this Note in connection with the indebtedness
evidenced hereby, including, without limitation, all attorneys' fees and costs,
for the implementation of the Loan, the collection of the indebtedness evidenced
hereby and the enforcement of rights and remedies hereunder or under the other
Loan Documents, whether or not suit is instituted; and (f) consents to all of
the terms and conditions contained in this Note, the Loan Agreement, the
Mortgage, the Assignment of Leases and Rents, and all other instruments now or
hereafter executed evidencing or governing all or any portion of the security or
collateral for this Note and for such Loan Agreement, or any one or more of the
other Loan Documents.
9.Delay Not A
Bar.
No delay or omission on the part of the
holder in exercising any right hereunder or any right under any instrument or
agreement now or hereafter executed in connection herewith, or any agreement or
instrument which is given or may be given to secure the indebtedness evidenced
hereby or by the Loan Agreement, or any other agreement now or hereafter
executed in connection herewith or therewith shall operate as a waiver of any
such right or of any other right of such holder, nor shall any delay, omission
or waiver on any one occasion be deemed to be a bar to or waiver of the same or
of any other right on any future occasion.
9
10.Severability.
If any term, provision, covenant, or
condition of this Note, or the application thereof to any person or any
circumstance, is held to be unenforceable, invalid or illegal (in whole or in
part) for any reason (in any relevant jurisdiction), the remaining terms,
provisions, covenants, and conditions of this Note, modified by the deletion of
the unenforceable, invalid or illegal portion (in any relevant jurisdiction),
will continue in full force and effect, and such unenforceability, invalidity,
or illegality will not otherwise affect the enforceability, validity or legality
of the remaining terms, provisions, covenant and conditions of this Note so long
as this Note as so modified continues to express, without material change, the
original intentions of the parties as to the subject matter hereof and the
deletion of such portion of this Note will not substantially impair the
respective expectations of the parties or the practical realization of the
benefits that would otherwise be enforced upon the parties. The
parties will endeavor in good faith negotiations to replace the prohibited or
unenforceable provision with a valid provision, the economic effect of which
comes as close as possible to that of the prohibited or unenforceable
provision.
11.Compliance With Usury
Laws.
All agreements between Borrower [, each
Guarantor] and Lender are hereby expressly limited so that in no contingency or
event whatsoever, whether by reason of acceleration of maturity of the
indebtedness evidenced hereby or otherwise, shall the amount paid or agreed to
be paid to Lender for the use or the forbearance of the indebtedness evidenced
hereby exceed the maximum permissible under applicable law. As used
herein, the term "applicable law" shall mean the law in effect as of the date
hereof, provided, however, that in the
event there is a change in the law which results in a higher permissible rate of
interest, then this Note shall be governed by such new law as of its effective
date. In this regard, it is expressly agreed that it is the intent of
Borrower and Lender in the execution, delivery and acceptance of this Note to
contract in strict compliance with the laws of the Commonwealth of Massachusetts
from time to time in effect. If, under or from any circumstances
whatsoever, fulfillment of any provision hereof or of any of the Loan Documents
or the Security Documents at the time performance of such provision shall be
due, shall involve transcending the limit of validity prescribed by applicable
law, then the obligation to be fulfilled shall automatically be reduced to the
limit of such validity, and if under or from any circumstances whatsoever Lender
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of
interest. This provision shall control every other provision of all
agreements between Borrower [, the Guarantor] and Lender.
12.Use of
Proceeds.
All proceeds of the Loan shall be used
solely for the purposes more particularly provided for and limited by the Loan
Agreement.
13.Security.
This Note is secured by a Mortgage and
Security Agreement, a Collateral Assignment of Leases and Rents to be recorded
at the Middlesex County (South) Registry of Deeds, and which relate to property
(“Property”) located at 40 Edwin Land Boulevard, Cambridge, Massachusetts,
and are more particularly described in the Mortgage and is further secured by
other collateral as set forth in the Loan Agreement.
14.Notices.
Any notices given with respect to this
Note shall be given in the manner provided for in the Loan
Agreement.
10
15.Governing Law and Consent to
Jurisdiction.
15.1. Substantial
Relationship. It is understood and agreed that all of the Loan
Documents were negotiated, executed and delivered in the Commonwealth of
Massachusetts, which Commonwealth the parties agree has a substantial
relationship to the parties and to the underlying transactions embodied by the
Loan Documents.
15.2. Place of
Delivery. Borrower agrees to furnish to Lender at Lender's
office in Boston, Massachusetts all further instruments, certifications and
documents to be furnished hereunder.
15.3. Governing
Law. This Note [,except as otherwise provided in Section
15.4,] 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.
15.4. Consent to
Jurisdiction. Borrower hereby consents to personal
jurisdiction in any state or Federal court located within the Commonwealth of
Massachusetts. BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF
THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON BORROWER BY MAIL AT THE ADDRESS SET FORTH IN THE LOAN
AGREEMENT. BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT FORUM.
16.Waiver of Jury
Trial.
BORROWER
AND LENDER (BY ACCEPTANCE OF THIS NOTE) MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE 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, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT,
COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT
NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS
PROHIBITED BY LAW, BORROWER HEREBY WAIVES ANY RIGHT TO ANY HAVE TO CLAIM OR
RECOVER IN ANY LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR LENDER TO ACCEPT THIS NOTE AND MAKE
THE LOAN.
11
17.No Oral
Change.
This Note and 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. In no event
shall any oral agreements, promises, actions, inactions, knowledge, course of
conduct, course of dealing, or the like be effective to amend, terminate, extend
or otherwise modify this Note or any of the other Loan Documents.
18.Rights of the
Holder.
This Note and the rights and remedies
provided for herein may be enforced by Lender or any subsequent holder
hereof. Wherever the context permits each reference to the term
"holder" herein shall mean and refer to Lender or the then subsequent holder of
this Note.
19.Right to Pledge to Federal
Reserve.
Lender
may at any time pledge or assign all or any portion of its rights under the Loan
Documents including any portion of this Note to any of the twelve (12) Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
Section 341. No such pledge or assignment or enforcement thereof
shall release Lender from its obligations under any of the Loan
Documents.
20.General Rights of Assignment
and Participation.
Lender
shall have the unrestricted right at any time or from time to time, and without
Borrower’s or any Guarantor’s consent, to assign all or any portion of its
rights and obligations hereunder to one or more banks or other financial
institutions (each, as “Assignee”), and Borrower and each Guarantor agrees that
it shall execute, or cause to be executed, such documents, including without
limitation, amendments to this Agreement and to any other documents, instruments
and agreements executed in connection herewith as Lender shall deem necessary to
effect the foregoing. In addition, at the request of Lender and any
such Assignee, Borrower shall issue one or more new promissory notes, as
applicable, to any such Assignee and, if Lender has retained any of its rights
and obligations hereunder following such assignment, to Lender, which new
promissory notes shall be issued in replacement of, but not in discharge of, the
liability evidenced by the promissory note held by Lender prior to such
assignment and shall reflect the amount of the respective commitments and loans
held by such Assignee and Lender after giving effect to such
assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by Lender in
connection with such assignment and the payment by Assignee of the purchase
price agreed to by Lender, and such Assignee, such Assignee shall be a party to
this Agreement and shall have all of the rights and obligations of Lender
hereunder (and under any and all other guaranties, documents, instruments and
agreements executed in connection herewith) to the extent that such rights and
obligations have been assigned by Lender pursuant to the assignment
documentation between Lender and such Assignee, and Lender shall be released
from its obligations hereunder and thereunder to a corresponding
extent. Lender may furnish any information concerning Borrower,
Guarantor or the Property in its possession from time to time to prospective
Assignees, provided that Lender require any such prospective Assignees to agree
in writing to maintain the confidentiality of such information.
12
Lender shall have the unrestricted
right at any time and from time to time, and without the consent of or notice to
Borrower [or any Guarantor], to grant to one or more banks or other financial
institutions (each, a “Participant”) participating interests in [Lender’s
obligation to lend hereunder and/or] any or all of the loans held by Lender
hereunder. In the event of any such grant by Lender of a
participating interest to a Participant, whether or not upon notice to Borrower,
Lender shall remain responsible for the performance of its obligations hereunder
and Borrower shall continue to deal solely and directly with Lender in
connection with Lender’s rights and obligations hereunder. Lender may
furnish any information concerning Borrower, Guarantor or the Property in its
possession from time to time to prospective Participants, provided that Lender
shall require any such prospective Participant to agree in writing to maintain
the confidentiality of such information.
21.Replacement
Note.
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 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.
22.Setoff.
Borrower
hereby grants to Lender, a continuing lien, security interest and right of
setoff as security for all liabilities and obligations to Lender, whether now
existing of hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Lender or any entity under the control of Citizens
Financial Group, Inc. and its successors and assigns, or in transit to any of
them. At any time, without demand or notice (any such requirement for
notice being knowingly voluntarily and irrevocably waived by Borrower), Lender
may set off the same or any part thereof and apply the same to any liability or
obligation of Borrower even though unmatured and regardless of the adequacy of
any other collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE
LENDER TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL
WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO
SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
[REMAINDER
OF PAGE INTENTIONALLY BLANK]
13
IN WITNESS WHEREOF, Borrower has caused
this Note to be duly executed as of the date set forth above as a sealed
instrument at Boston, Massachusetts.
Witness: BORROWER:
/s/ Norman C.
Spector
/s/ Peter J.
Sonnabend
Peter J.
Sonnabend, as Trustee of Charterhouse of Cambridge Trust, and not
individually
/s/ Norman C.
Spector
/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
/s/ Norman C.
Spector
By: /s/ Peter J.
Sonnabend
Peter J.
Sonnabend
Its Vice
President
Hereunto
duly authorized
14
Schedule
1
SCHEDULE OF PRINCIPAL
REPAYMENT AMOUNTS
10-Feb-10
|
CBD17350
|
|||
|
Start Date
|
End Date
|
Balance
|
Amort
|
|
1-Mar-10
|
1-Jun-10
|
32,000,000
|
|
|
1-Jun-10
|
1-Sep-10
|
31,865,899
|
(134,101)
|
|
1-Sep-10
|
1-Dec-10
|
31,731,798
|
(134,101)
|
|
1-Dec-10
|
1-Mar-11
|
31,597,697
|
(134,101)
|
|
1-Mar-11
|
1-Jun-11
|
31,463,596
|
(134,101)
|
|
1-Jun-11
|
1-Sep-11
|
31,320,656
|
(142,940)
|
|
1-Sep-11
|
1-Dec-11
|
31,177,716
|
(142,940)
|
|
1-Dec-11
|
1-Mar-12
|
31,034,776
|
(142,940)
|
|
1-Mar-12
|
1-Jun-12
|
30,891,836
|
(142,940)
|
|
1-Jun-12
|
4-Sep-12
|
30,739,475
|
(152,361)
|
|
4-Sep-12
|
3-Dec-12
|
30,587,114
|
(152,361)
|
|
3-Dec-12
|
1-Mar-13
|
30,434,753
|
(152,361)
|
|
1-Mar-13
|
3-Jun-13
|
30,282,392
|
(152,361)
|
|
3-Jun-13
|
3-Sep-13
|
30,119,988
|
(162,404)
|
|
3-Sep-13
|
2-Dec-13
|
29,957,584
|
(162,404)
|
|
2-Dec-13
|
3-Mar-14
|
29,795,180
|
(162,404)
|
|
3-Mar-14
|
2-Jun-14
|
29,632,776
|
(162,404)
|
|
2-Jun-14
|
2-Sep-14
|
29,459,668
|
(173,108)
|
|
2-Sep-14
|
1-Dec-14
|
29,286,560
|
(173,108)
|
|
1-Dec-14
|
2-Mar-15
|
29,113,452
|
(173,108)
|