Exhibit 10.w
RENEWED, AMENDED AND RESTATED
SECURED PROMISSORY NOTE
$933,000.00 February 12, 2003
Atlanta, Georgia
WHEREAS, Ridgewood Hotels, Inc., a Delaware corporation ("Ridgewood")
issued to Louisville Hotel, L.P., a Delaware limited partnership ("Louisville")
(i) that certain Secured Promissory Note dated September 30, 1999 in the
principal amount of $1,333,000 (the "Louisville Note"); (ii) that certain
Secured Promissory Note (Arizona) dated September 30, 1999 in the principal
amount of $300,000 (the "Arizona Note"); and (iii) that certain Secured
Promissory Note (Florida) dated September 30, 1999 in the principal amount of
$300,000 (the "Florida Note" and together with the Louisville Note and the
Arizona Note, the "Original Notes");
WHEREAS, contemporaneously herewith, Ridgewood has paid to Louisville the
sum of $200,000 in cash, and Louisville has applied such payment on account and
in reduction of the Louisville Note; and
WHEREAS, contemporaneously herewith, Ridgewood has conveyed to Louisville
title to certain property in Columbus, Ohio, having an agreed value of
$200,000.00, and in connection with, and consideration of, such conveyance,
Louisville has agreed to grant Ridgewood a credit in the amount of $200,000.00
on account and in reduction of the indebtedness evidenced by the Louisville
Note; and
WHEREAS, contemporaneously herewith,
(a) Ridgewood has conveyed to SC Glendale Land, LLC title to certain
property located in Glendale, Arizona, said property having been conveyed to
said grantee subject to a certain Deed of Trust executed by Ridgewood in favor
of Louisville in order to secure, among other things, the Arizona Note, and in
connection with such conveyance, Louisville has released Ridgewood from
liability under the Arizona Note; and
(b) Ridgewood and Louisville have entered into that certain Renewed,
Amended and Restated Promissory Note amending the Florida Note; and
WHEREAS, the Louisville Note now evidences an indebtedness having an
outstanding principal balance of $933,000.00 as of the date hereof; and
WHEREAS, Ridgewood desires to renew, amend and restate the Louisville Note
as more particularly set forth herein.
NOW, THEREFORE, the Louisville Note is hereby renewed, amended and
restated as follows:
FOR VALUE RECEIVED, RIDGEWOOD HOTELS, INC., a Delaware corporation
("Maker"), hereby promises to pay to LOUISVILLE HOTEL, L.P., a Delaware limited
partnership ("Holder"), or order, at One North Clematis Street, Suite 305, West
Palm Beach, FL 33401, the principal amount of Nine Hundred Thirty Three Thousand
Dollars ($933,000.00), with interest on such amount until paid, at the rate set
forth below and payable as follows:
1. Interest Rate
The amount of outstanding principal shall bear interest at the rate of
thirteen percent (13%) per annum from October 1, 1999 through February 12, 2003,
and at the rate of ten percent (10%) per annum from and after February 12, 2003;
provided, however, that if there is an Event of Default with respect to any
monetary obligation then for so long as such Event of Default continues the
outstanding principal shall bear interest at the rate of fifteen percent (15%).
Interest shall be calculated on the basis of a 365-day year.
2. Term
All unpaid principal, together with any and all accrued and unpaid
interest, shall be due (the "Maturity Date") upon the earlier of (i) February
12, 2006 or (ii) the acquisition of Holder's membership interest in Louisville
Hotel, LLC pursuant to the Operating Agreement of Louisville Hotel, LLC
effective as of May 1998, as amended by that First Amendment to the Operating
Agreement of Louisville Hotel, LLC dated as of September 30, 1999 and that
Second Amendment to the Operating Agreement of Louisville Hotel, LLC dated as of
February 12, 2003 (such Operating Agreement of Louisville Hotel, LLC as at any
time amended, modified, revised or replaced, the "Operating Agreement").
3. Payment
Interest only shall be payable in monthly installments in arrears and
interest payments for each month shall be due on the fifteenth (15th) day of the
following month beginning on February 15, 2003, and continuing to the Maturity
Date, on which date the amount equal to the outstanding principal balance,
together with accrued and unpaid interest, shall be due and payable.
Any payment hereunder shall be applied first to the payment of costs and
charges of collection, if any, then to accrued interest, and the balance, if
any, shall be then applied to reduction of principal. Principal and interest are
payable in lawful money of the United States of America.
4. Late Payment
Maker agrees that if on or after February 12, 2003 for any reason it fails
to make any on the monthly payments required herein, including the amount due at
the Maturity Date, within five (5) days after the due date, Holder shall be
entitled to damages for the detriment caused thereby, the extent of which
damages are extremely difficult and impractical to ascertain. Maker therefore
agrees that a sum equal to five percent (5%) of such delinquent payment is a
reasonable
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estimate of such damages and Maker agrees to pay such sum upon demand by Holder.
Acceptance of such late charge by the Holder shall in no event constitute a
waiver of Maker's default with respect to such overdue amount nor prevent the
Holder from exercising any of the other rights and remedies granted hereunder.
5. Security Agreement
This Note is secured by an Amended Membership Interest Security Agreement,
executed contemporaneously herewith by Maker in favor of Holder, which grants a
security interest in Maker's ownership interests in Louisville Hotel LLC, a
Delaware limited liability company (the "Security Agreement"), and by that
certain Mortgage, Assignment of Rents and Security Agreement recorded in
Official Records Book 3741, Page 1746, and corrected by that certain Corrected
Mortgage, Assignment of Rents and Security Agreement recorded in Official
Records Book 3789, Page 924, and modified by that certain Partial Release of
Mortgage recorded in Official Records Book 3789, Page 940, all of the Public
Records of Seminole County, Florida (the said Mortgage, Assignment of Rents and
Security Agreement, as so amended and modified, being hereinafter sometimes
referred to as the `Florida Mortgage", which said Florida Mortgage also secures
the Florida Note; provided, however, that upon the payment in full of the
Florida Note, the Florida Mortgage shall be released and shall no longer secure
the obligations of Maker under this Note.
6. Default/Acceleration
If any one or more of the following events shall occur (hereinafter called
an "Event of Default"), namely: (i) default shall be made in the payment of any
installment hereunder, when due which is not cured within any applicable cure
period; or (ii) Maker shall become insolvent, or shall be unable to pay its
debts as they mature; or shall admit in writing its inability to pay its debts
as they mature; or shall make an assignment for the benefit of its creditors; or
shall file or commence or have filed or commenced against it any proceeding for
any relief under any bankruptcy or insolvency law or any law or laws relating to
the relief of debtors, readjustment of indebtedness, reorganizations,
compositions or extensions, or a receiver or trustee shall be appointed for the
undersigned; or (iii) there shall be a material adverse change in the financial
condition of Maker as compared to its financial condition as of the date hereof
or (iv) an event of default shall exist under the Security Agreement which is
not cured within any applicable cure period; or (v) Maker shall fail to comply
with any other provision of this Note; or (vi) any representation or warranty
made herein or in the Security Agreement shall be false in any material respect;
(vii) there is an Event of Default under that certain Renewed, Amended and
Restated Secured Promissory Note [Florida] between Maker and Holder dated of
even date herewith; or (viii) there is any default or event of default under the
Operating Agreement by Maker which is not cured within any applicable cure
period, and with respect to each of the foregoing, in the case of any monetary
obligation, the same shall not be paid within five (5) days of written notice of
such failure by Holder to Maker, and in the case of any non-monetary obligation
which is curable, the same shall not be cured within twenty (20) days of written
notice of such failure by Holder to Maker (provided that if a cure period is
provided in the Security Agreement or the Operating Agreement, such cure periods
shall control with respect to defaults under such agreements, and the cure
period provided herein shall not apply with respect thereto),
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THEN, upon the occurrence of any such Event of Default, or upon the expiration
of the term of this Note, Holder at its election, and without presentment,
demand, notice of any kind, all of which are expressly waived by Maker, may
declare the entire outstanding balance of principal and interest thereon
immediately due and payable, together with all costs of collection, including
attorneys' fees, or may exercise upon or enforce its rights to its collateral,
as may be set forth in the Security Agreement or otherwise.
7. No Waiver By Holder
The acceptance by Holder of any payment under this Note after the date
such payment is due, or the failure to declare an Event of Default as herein
provided, shall not constitute a waiver of any of the terms of this Note or the
right to require the prompt payment when due of future or succeeding payments or
to declare an Event of Default for any failure to so pay or for any other
default. The acceptance by Holder of a payment of a portion of any installment
at any time that such installment is due in full shall not cure or excuse the
default caused by the failure to pay such installment in full and shall not
constitute a waiver of the right to require full payment when due of all future
or succeeding installments.
8. Attorneys' Fees And Costs
In the event Holder takes any action to enforce any provision of this
Note, either through legal proceedings or otherwise, Maker promises to
immediately reimburse Holder for reasonable attorneys' fees and all other costs
and expenses so incurred. Maker shall also reimburse Holder for all reasonable
attorneys' fees and costs reasonably incurred in the representation of Holder in
any bankruptcy, insolvency, reorganization or other debtor-relief proceeding of
or relating to Maker or any security for the obligations hereunder, or for any
action to enforce any judgment rendered hereon or relating to enforcement
hereof.
9. Waivers
The Maker, endorsers, guarantors and sureties of this Note hereby waive
diligence, demand, presentment, notice of non-payment, protest and notice of
protest; expressly agree that this Note, or any payment hereunder, may be
renewed, modified or extended from time to time and at any time; and consent to
the acceptance or release of security for this Note or the release of any party
or guarantor, all without in any way affecting their liability and waive the
right to plead any and all statutes of limitations as a defense to any demand on
this Note, or on any guaranty thereof, or to any agreement to pay the same to
the full extent permissible by law.
10. Maximum Interest
In no event whatsoever shall the amount paid, or agreed to be paid, to
Holder for the use, forbearance or detention of money to be loaned hereunder or
otherwise, for the performance or payment of any covenant or obligation
contained herein, exceed the maximum amount permissible under applicable law. If
from any circum-stance whatsoever fulfillment of any provision hereof exceeds
the limit of validity prescribed by law, then, ipso facto, the obligation to be
fulfilled shall be reduced to the limit of such validity, and if from any such
circumstance
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Holder shall ever receive as interest under this Note or otherwise an amount
that would exceed the highest lawful rate, such amount that would be excessive
interest shall be applied to the reduction of the principal amount owing
hereunder and not to the payment of interest, or if such excessive interest
exceeds the unpaid balance of principal, such excess shall be refunded to Maker.
11. Prepayment
Maker may prepay this Note in full or in part at any time without
prepayment charge; provided that any partial prepayments of principal shall be
in an amount not less than $50,000. No partial prepayment shall release Maker
from thereafter tendering all regular scheduled monthly payments required herein
until the Note is paid in full.
12. Notices
Any notice which a party is required or may desire to give the other shall
be in writing and may be sent by personal delivery or by mail (either (i) by
United States registered or certified mail, return receipt requested, postage
prepaid, or (ii) by Federal Express or similar generally recognized overnight
carrier regularly providing proof of delivery), addressed as follows (subject to
the right of a party to designate a different address for itself by notice
similarly given):
To Maker: Ridgewood Hotels, Inc.
100 Rue Charlemange
Braselton, GA 30517
Attn: Mr. Henk Evers
Telephone: (678) 425-9000
Facsimile: (678) 425-6913
To Holder: Louisville Hotel, L.P.
c/o Sterling USA, Inc.
One North Clematis Street - Suite 305
West Palm Beach, FL 33401
Attn: David Kosoy
Telephone: (561) 835-1810
Facsimile: (561) 835-4118
Any notice so given by mail shall be deemed to have been given as of delivery
(whether accepted or refused) established by U.S. Post Office return receipt or
the overnight carrier's proof of delivery, as the case may be. Any such notice
not so give shall be deemed given upon receipt of the same by the party to whom
the same is to be given.
Maker hereby designates The Corporation Trust Company, whose address is 1209
Orange Street, Wilmington, Delaware 19801, as the Maker's agent for receipt of
service of process in any action filed or instituted by Holder in respect of
this Note or the Security Agreement or any other
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document, instrument or agreement evidencing, securing or in any way related to
the indebtedness evidence by this Note.
13. Additional Representations, Warranties and Covenants
Maker is a corporation formed and incorporated under the laws of the State
of Delaware. The principal place of business and chief executive office of Maker
is located at the address for notice to such party as set forth herein.
Maker shall, from time to time, promptly execute and deliver all further
instruments and documents and take all further action that may be reasonably
necessary or desirable or that Holder may request, in order to effectuate the
provisions of this Note.
In the event that Maker ceases to be a public company, then after such
date Maker shall provide to Holder (i) within 45 days of the end of each fiscal
quarter, copies of unaudited financial statements and (ii) within 90 days of the
end of Maker's fiscal year copies of Maker's audited financial statements.
Holder agrees that any such financial statements provided to Holder shall be
considered confidential information of Maker and shall not be disclosed by
Holder to any third party.
14. Miscellaneous
The terms of this Note shall inure to the benefit of and bind the parties
hereto and their successors and assigns. As used herein the term "Maker" shall
include the undersigned Maker and any other person or entity who may
subsequently become liable for the payment hereof.
All obligations hereunder are joint and several and references to "Maker" shall
refer to each and every one of them. The term of this Note shall inure to the
benefit of and bind Maker and Holder and their successors and assigns. The term
"Holder" shall include the named Holder as well as any other person or entity to
whom this Note or any interest in this Note is conveyed, transferred or
assigned. Each person signing this Note on behalf of Maker represents and
warrants that he has full authority to do so and that this Note binds Maker.
15. Time of Essence
It is agreed that time is of the essence as to every term, condition and
provision of this Note.
16. Severability
Every provision hereof is intended to be several and if any provision is
determined by a court of competent jurisdiction to be illegal, invalid or
unenforceable, such illegality, invalidity or unenforceability shall not affect
the other provisions hereof, which shall remain binding and enforceable.
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17. Modification
This Note may not be changed or modified orally, nor may any right or
provision hereof be waived orally, but in each instance only by an instrument in
writing signed by the party against which enforcement of such change,
modification or waiver is sought.
18. Remedies Cumulative
Each and every right, remedy and power hereby granted to Holder or allowed
it by law or other agreement shall be cumulative and not exclusive and may be
exercised by Holder from time to time.
19. Nonrecourse
Notwithstanding any other provision of this Note or the Security
Agreement, except as provided herein below, Maker shall not be personally liable
for the payment of the principal sum or any interest due or any other amount
under this Note, and Holder agrees that in no event shall any monetary
deficiency judgment for such amount be sought or secured against Maker for the
payment of sums due hereunder. Notwithstanding the foregoing, however, nothing
in this Note or the Security Agreement shall be deemed to limit the rights and
remedies of Holder with respect to, or limit the liability of Maker for, any and
all losses, costs, claims, demands, judgments, penalties, fines, liabilities,
damages or expenses arising (directly or indirectly), by reason of the
occurrence or existence of or relating to any of the following: (a) fraud or
misrepresentation by Maker, (b) misappropriation or misapplication of any
property securing the obligations under this Note, including, but not limited to
rents, issues, profits or other revenues, and/or other revenues and/or monies,
including security deposits, insurance proceeds and condemnation awards,
including any failure to apply the same to amounts under the Note or (c)
intentional waste with regard to any security for the obligations hereunder.
20. Governing Law
This Note shall be governed by and construed under the laws of the State
of Delaware.
21. Waiver of Jury Trial
Maker and Holder, to the fullest extend permitted by law, each hereby
waives all right to a trial by jury in any action or proceeding arising out of
this Note.
[Signature page follows]
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This RENEWED, AMENDED AND RESTATED SECURED PROMISSORY NOTE renews, amends
and restates the Original Note (the original of which is attached hereto) and
Holder's acceptance of this Renewed, Amended and Restated Secured Promissory
Note constitutes Holder's agreement to the terms set forth herein.
MAKER:
RIDGEWOOD HOTELS, INC.,
a Delaware corporation
By:_____________________________________
Its:____________________________________
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