FIRST AMENDMENT OF FIRST AMENDED AND RESTATED LOAN AGREEMENT
FIRST
AMENDMENT OF FIRST
AMENDED
AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT OF FIRST AMENDED
AND RESTATED LOAN AGREEMENT (“Amendment”) is made this 14th day of May, 2010
among Summit Hotel Properties, LLC, a South Dakota limited liability company
(“Summit Hotel”), Summit Hospitality V, LLC, a South Dakota limited liability
company (“Summit Hospitality”) (Summit Hotel and Summit Hospitality may be
collectively referred to as “Borrowers”), First National Bank of Omaha, a
national banking association ("First National") as a Lender, Administrative
Agent and Collateral Agent for the Lenders, M & I Xxxxxxxx & Xxxxxx
Bank, a national banking association (“M & I”), Bank Midwest, N.A. (“Bank
Midwest”), Xxxxxxxx County Trust & Savings, a state banking association
(“Xxxxxxxx”), Quad City Bank & Trust Co., a state banking association (“Quad
City”), and Bankers Trust Company, N.A. (“Bankers Trust”), and amends that
certain First Amended and Restated Loan Agreement dated August 31, 2009 among
Borrowers, Agent and the Lenders party thereto (as amended, the “Loan
Agreement”).
WHEREAS, pursuant to the Loan Agreement
and the other Loan Documents, Lenders party thereto extended the Loans to
Borrowers more fully described in the Loan Agreement;
WHEREAS, Borrowers, Agent and the
original Lenders party to the Loan Agreement desire to add M & I and Bankers
Trust as Lenders and terminate Borrowers' respective ability to obtain
additional Loans under the Loan Agreement; and
WHEREAS, the parties hereto agree to
amend the Loan Agreement as provided for in this Amendment.
NOW, THEREFORE, in consideration of the
amendments to the Loan Agreement provided for below, the mutual covenants herein
and other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the parties agree to amend the Loan Agreement as
follows:
1. Capitalized
terms used herein shall have the meaning given to such terms in the Loan
Agreement as amended in this Amendment, unless specifically defined
herein. The provisions of this Amendment shall become effective on
the date of this Amendment.
2. The
definition of the term “Lenders” in the opening paragraph of the Loan Agreement
is hereby amended to mean, collectively, First National, Bank Midwest, Xxxxxxxx
County, Quad City, M & I and Bankers Trust. M & I and Bankers
Trust each hereby acknowledge, accept and agree to the terms and provisions of
the Loan Agreement, as amended, including by this Amendment, and the other Loan
Documents, including, but not limited to the provisions of Article IX of the
Loan Agreement, and agree to perform their respective obligations as Lenders
under the Loan Agreement from and after the date of this Amendment as if they
each were an original party to the Loan Agreement. M &
I and Bankers Trust each hereby acknowledge receipt of a copy of the Loan
Agreement and the other Loan Documents. The outstanding principal
balance of each Pool One Note and Pool Two Note will be reallocated among all
the Lenders, including M & I and Bankers Trust, pro rata based upon each
Lender's respective Commitment, and M & I and Bankers Trust will each be
paid the interest rate applicable on each such Pool One Note and Pool Two
Note.
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3. Schedule
1.1 of the Loan Agreement is hereby deleted in its entirety and the Schedule 1.1
attached to this Amendment is inserted in lieu thereof.
4. Effective
on the date of this Amendment, neither Borrower will request, and no Lender will
be obligated to extend to Borrowers, any additional Pool One Loan or Pool Two
Loan.
5. Except
as modified and amended herein, all other terms, provisions, conditions and
obligations imposed under the terms of the Loan Agreement and the other Loan
Documents shall remain in full force and effect and are hereby ratified and
affirmed by Borrowers. To the extent necessary, the other Loan
Documents are hereby amended to be consistent with the terms of this
Amendment.
6. Borrowers
each certify and reaffirm by their execution of this Amendment that the
representations and warranties set forth in the Loan Agreement and the other
Loan Documents are true as of this date, and that no Event of Default under the
Loan Agreement or any other Loan Document, and no event which, with the giving
of notices or passage of time or both, would become such an Event of Default,
has occurred as of execution hereof.
7. This
Amendment may be executed simultaneously in several counterparts, each of which
shall be deemed an original but which together shall constitute one and the same
instrument.
[SIGNATURE
PAGES FOLLOW]
2
IN
WITNESS WHEREOF, the parties have executed and delivered this Amendment on the
date first written above.
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FIRST
NATIONAL BANK OF
OMAHA
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By:
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/s/
Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx, Vice
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President
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a
South Dakota limited liability
company,
by its Company Manager,
THE
SUMMIT GROUP, INC.
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By:
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/s/
Xxxxx X. Xxxxxxxxxxx
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Title:
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Chief
Executive Officer
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and
Manager
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SUMMIT
HOSPITALITY V, LLC, a
South
Dakota limited liability company,
by
its member, SUMMIT HOTEL
PROPERTIES,
LLC, a South Dakota
limited
liability company, by its
Company
Manager, THE SUMMIT
GROUP,
INC.
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By:
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/s/
Xxxxx X. Xxxxxxxxxxx
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Title:
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Chief
Manager
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On this
____ day of May, 2010, the undersigned acknowledges and accepts the terms of
this Amendment and hereby reaffirms and acknowledges the validity of his
obligations under his Guaranties and other Loan Documents to which he is a
party:
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/s/
Xxxxx X. Xxxxxxxxxxx
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Xxxxx
X. Xxxxxxxxxxx
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4
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M
& I XXXXXXXX & ILSLEY BANK
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By:
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/s/
Xxxxxxx Xxxxx
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Title:
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Vice
President
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5
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BANK
MIDWEST, N.A.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Title:
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Vice
President
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6
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XXXXXXXX
COUNTY TRUST &
SAVINGS |
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By:
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/s/
Xxxxx X. Xxxxxxxx
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Title:
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SVP
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7
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QUAD
CITY BANK & TRUST CO.
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Title:
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VP
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8
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BANKERS
TRUST COMPANY
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By:
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/s/
Xxx Xxxx
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Title:
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Vice
President
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SCHEDULE
1.1
(Commitments)
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First
National Bank of Omaha:
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$ | 8,987,355.33 | ||
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Bank
Midwest, N.A.
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$ | 13,481,033.00 | ||
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Xxxxxxxx
County Trust & Savings
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$ | 4,493,677.67 | ||
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Quad
City Bank & Trust Company
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$ | 4,493,677.67 | ||
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M
& I Xxxxxxxx & Ilsley Bank
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$ | 8,987,355.33 | ||
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Bankers
Trust Company,
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$ | 4,493,677.67 |
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