EXHIBIT 10.41
LOAN DOCUMENTS MODIFICATION AGREEMENT
THIS LOAN DOCUMENTS MODIFICATION AGREEMENT (hereinafter referred to as this
"Amendment") is made and entered into as of the 3rd day of December, 2001, by
and between SUBURBAN LODGES OF AMERICA, INC., a Georgia corporation, SUBURBAN
HOLDINGS, L.P., a Georgia limited partnership and SUBURBAN CONSTRUCTION, INC., a
Georgia corporation (hereinafter collectively referred to as the "Borrower"),
and SOUTHTRUST BANK, an Alabama banking corporation ("Lender").
BACKGROUND STATEMENT
Borrower and Lender are parties to that certain Amended and Restated Loan
Agreement dated September 27, 2000 (hereinafter referred to as the "Agreement").
All capitalized terms used herein shall have the same meanings as are ascribed
to them in the Agreement unless otherwise herein defined. Borrower has also
executed in favor of Lender that certain (i) Amended and Restated Line of Credit
Note dated September 27, 2000, in the original principal amount of Fifteen
Million and No/100 Dollars ($15,000,000.00) (the "Line of Credit Note"), (ii)
Non-Revolving Draw-Down Term Note dated September 27, 2000, in the original
principal amount of Ten Million and No/100 Dollars ($10,000,000.00) (the "Term
Note") (the Line of Credit Note and the Term Note are hereinafter collectively
referred to as the "Note"), and (iii) certain other loan documents relating to
and/or securing obligations arising under the Agreement and the Notes (any and
all other loan documents executed in connection with the Note and the Agreement
hereinafter collectively referred to as the "Loan Documents"). Borrower and
Lender have agreed to modify the Agreement and the Loan Documents to reflect the
same, and the parties are entering into this Amendment to evidence their
agreement.
AGREEMENT
FOR AND IN CONSIDERATION of the sum of Ten and No/100 Dollars ($10.00),
the foregoing recitals, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower and Lender do hereby
agree as follows:
1. AMENDMENT OF AGREEMENT. As of the date hereof, Borrower hereby reaffirms
and restates each and every covenant, warranty and representation set forth in
the Agreement. In addition, Borrower and Lender do hereby amend the Agreement,
effective as of the date hereof, by deleting Section 507(a) in its entirety and
replacing the same with the following:
"SECTION 507. Financial Covenants. Borrower shall not violate (or permit
the violation of) any of the following financial covenants:
(a) Suburban Debt Service Coverage Ratio: For each fiscal quarter, Suburban
shall maintain a Suburban Debt Service Coverage Ratio of no less than 1.65 :
1.00, measured and reviewed quarterly, on a rolling twelve (12) month basis."
2. MODIFICATION OF LOAN DOCUMENTS. As of the date hereof, Borrower hereby
reaffirms and restates each and every covenant, warranty and representation set
forth in the Agreement to reflect the terms of this Amendment.
3. RATIFICATION. Except as herein expressly modified or amended, all the
terms and conditions of the Agreement, the Note and the other Loan Documents are
hereby ratified, affirmed, and approved. In consideration of Lender agreeing to
the transactions contemplated by this Amendment, Borrower agrees to pay all
fees and expenses incurred in connection with this Amendment.
4. NO DEFENSES; RELEASE. For purposes of this Paragraph 4, the terms
"Borrower Parties" and "Lender Parties" shall mean and include Borrower and
Lender, respectively, and each of their respective predecessors, successors and
assigns, and each past and present, direct and indirect, parent, subsidiary and
affiliated entity of each of the foregoing, and each past and present employee,
agent, attorney-in-fact, attorney-at-law, representative, officer, director,
shareholder, partner and joint venturer of each of the foregoing, and each
heir, executor, administrator, successor and assign of each of the foregoing;
references in this paragraph to "any" of such parties shall be deemed to mean
"any one or more" of such parties; and references in this sentence to "each of
the foregoing" shall mean and refer cumulatively to each party referred to in
this sentence up to the point of such reference. Borrower hereby acknowledges,
represents and agrees: that Borrower has no defenses, setoffs, claims,
counterclaims or causes of action of any kind or nature whatsoever with respect
to the Agreement, the other Loan Documents or the Obligations, or with respect
to any other documents or instruments now or heretofore evidencing, securing or
in any way relating to the Obligations or with respect to any other
transaction, matter or occurrence between any of the Borrower Parties and any
Lender Parties or with respect to any acts or omissions of any Lender parties
(all of said defenses, setoffs, claims, counterclaims or causes of action being
hereinafter referred to as "Loan Related Claims"); that, to the extent that
Borrower may be deemed to have any Loan Related Claims, Borrower does hereby
expressly waive, release and relinquish any and all such Loan Related Claims,
whether or not known to or suspected by Borrower; that Borrower shall not
institute or cause to be instituted any legal action or proceeding of any kind
based upon any Loan Related Claims; and that Borrower shall indemnify, hold
harmless and defend all Lender Parties from and against any and all Loan
Related Claims and any and all losses, damages, liabilities, costs and expenses
suffered or incurred by any Lender Parties as a result of any assertion or
allegation by any Borrower Parties of any Loan Related Claims or as a result of
any legal action related thereto. Borrower hereby reaffirms and restates, as of
the date hereof, all covenants, representations and warranties set forth in
the Agreement.
5. NO NOVATION. Borrower hereby acknowledges and agrees that this Amendment
shall not constitute a novation of the indebtedness evidenced by Note.
6. NO WAIVER OR IMPLICATION. Borrower hereby agrees that nothing herein shall
constitute a waiver by Lender of any default, whether known or unknown, which
may exist under the Agreement or any other Loan Document. Borrower hereby
further agrees that no action, inaction or agreement by Lender, including,
without limitation, any extension, indulgence, waiver, consent or agreement of
modification which may have occurred or have been granted or entered into (or
which may be occurring or be granted or entered into hereunder or otherwise)
with respect to nonpayment of the Obligations or any portion thereof, or with
respect to matters involving security for the Obligations, or with respect to
any other matter relating to the Obligations, shall require or imply any future
extension, indulgence, waiver, consent or agreement by Lender. Borrower hereby
acknowledges and agrees that Lender has made no agreement, and is in no way
obligated, to grant any future extension, indulgence, waiver or consent with
respect to the Obligations or any matter relating to the Obligations.
7. NO RELEASE OF COLLATERAL. Borrower further agrees that this Amendment
shall in no way occasion a release of any collateral held by Lender as security
to or for the Obligations, and that all collateral held by Lender as security
to or for the Obligations shall continue to secure the Obligations.
8. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of Borrower and Lender and their respective successors and
assigns, whether voluntary by act of the parties or involuntary by operation of
law.
IN WITNESS WHEREOF, this Amendment has been duly executed under seal
by Borrower and Lender as of the day and year first above written.
BORROWER:
SUBURBAN LODGES OF AMERICA, INC., a
Georgia corporation
By: /s/ Paul A. Criscillis, Jr.
--------------------------------
Paul A. Criscillis, Jr.,
Chief Financial Officer
(CORPORATE SEAL)
SUBURBAN CONSTRUCTION, INC., a
Georgia corporation
By: /s/ Paul A. Criscillis, Jr.
--------------------------------
Paul A. Criscillis, Jr.,
Chief Financial Officer
(CORPORATE SEAL)
SUBURBAN HOLDINGS, L.P., a
Georgia limited partnership
By: Suburban Management, Inc., its
General Partner
By: /s/ Paul A. Criscillis, Jr.
--------------------------------
Paul A. Criscillis, Jr.,
Chief Financial Officer
LENDER:
SOUTHTRUST BANK, an Alabama banking
corporation, successor by conversion
to SouthTrust Bank, N.A., a national
banking corporation
By: /s/ William Harris
--------------------------------
William Harris, Vice President
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